Professional Documents
Culture Documents
between
and
[___________________]
(as “Seller”)
TABLE OF CONTENTS
RECITALS............................................................................................................................................ 1
ARTICLE I. GOVERNING TERMS ................................................................................................ 1
1.1 Entire Agreement.................................................................................................................... 1
1.2 Interpretation .......................................................................................................................... 1
1.3 Recordings .............................................................................................................................. 2
1.4 Authorized Representatives .................................................................................................... 2
ARTICLE II. TERM ........................................................................................................................... 2
2.1 Term ....................................................................................................................................... 2
2.2 Binding Nature ....................................................................................................................... 3
ARTICLE III. OBLIGATIONS AND DELIVERIES...................................................................... 3
3.1 Transaction ............................................................................................................................. 3
3.2 Interconnection Facilities ....................................................................................................... 6
3.3 Gas Supply & Transportation ................................................................................................. 7
3.4 Electric Transmission and Delivery ..................................................................................... 10
3.5 Scheduling ............................................................................................................................ 11
3.6 Standards of Care ................................................................................................................. 15
3.7 Metering ............................................................................................................................... 15
3.8 Outage Notifications............................................................................................................. 19
3.9 Force Majeure....................................................................................................................... 22
3.10 Operations Logs and Access Rights ................................................................................. 23
3.11 Performance Testing; Adjustment of Monthly Contract Capacity ................................... 23
3.12 Operating Procedures ....................................................................................................... 28
3.13 Changes to Scheduling and Outage Procedures ............................................................... 28
ARTICLE IV. AVAILABILITY; HEAT RATE; AND COMPENSATION ............................... 28
4.1 Availability ........................................................................................................................... 28
4.2 Heat Rate .............................................................................................................................. 30
4.3 Product Compensation.......................................................................................................... 33
4.4 Start-Up Payment ................................................................................................................. 36
4.5 Failed Start Penalty............................................................................................................... 36
4.6 Other Payment Adjustments ................................................................................................. 37
ARTICLE V. EVENTS OF DEFAULT; REMEDIES ................................................................... 37
5.1 Events of Default .................................................................................................................. 37
5.2 Declaration of Early Termination Date and Calculation of Termination Payment .............. 39
5.3 Rights And Remedies Are Cumulative ................................................................................ 40
5.4 Waiver .................................................................................................................................. 40
ARTICLE VI. PAYMENT AND NETTING .................................................................................. 41
6.1 Billing and Payment ............................................................................................................. 41
6.2 Netting .................................................................................................................................. 42
6.3 Payment ................................................................................................................................ 42
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APPENDICES
The following appendices are incorporated into and made a part of this Agreement by reference.
Appendix VII – Examples of Section 3.3(g) OFO Charge Calculations ................................... VII-1
Appendix XIV - Example of Sections 4.1(b), 4.1(c), and 4.3(b) Availability ........................ XIV-1
Appendix XVII - Example of Section 4.3(b)(i) Monthly Fixed Payment Calculation........... XVII-1
Appendix XVIII – Example of Section 4.3(b)(ii)(A) Variable O&M Payment Calculation XVIII-1
Appendix XIX – Example of Section 4.3(b)(ii)(B) Fired Hours Payment Calculation .......... XIX-1
Appendix XXI - Example of Section 4.5 Failed Start Penalty Calculation............................. XXI-1
Appendix XXIV – Example of Section 9.3(a)(i) Carbon Dioxide Emissions Payment Calculation
.............................................................................................................................................. XXIV-1
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Appendix XXVII – Critical Milestones (applicable to New Facilities only) ...................... XXVII-1
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This Power Purchase Agreement is made by and between Pacific Gas and Electric Company, a
California corporation (“PG&E”, and as further defined herein, “Buyer”) and ___________, a
[identify State] limited liability company (“Seller”) as of the Execution Date. Seller and Buyer
are referred to individually as “Party” or collectively as “Parties”. Buyer and Seller hereby agree
to the following:
RECITALS
This Agreement is for the purchase and sale of all Products that are available from the Unit(s).
This is a tolling Agreement under which Buyer will make Gas available at the Gas Delivery Point
as necessary for Seller to provide the Products described herein.
This Agreement specifically provides for the dispatch of the Unit(s) solely by Buyer, and under
no circumstances may the Units become or be deemed to be Regulatory Must-Take Generation or
Regulatory Must-Run Generation resources, as those terms are used in the CAISO Tariff, without
the prior written agreement of Buyer.
1.1 Entire Agreement. This Agreement, together with each and every appendix,
attachment, amendment, schedule and written supplements hereto, to the extent those are
executed by the Parties, constitutes the entire agreement of the Parties as to the matters set forth
herein.
(a) The term “including” shall mean “including without limitation”; the term
“month” shall mean a calendar month unless otherwise indicated, and a “day” shall be a 24-hour
period beginning at 12:00:01 a.m. and ending at 12:00:00 midnight; provided that a “day” may be
23 or 25 hours on those days on which daylight savings time begins or ends, respectively.
(c) Unless otherwise specified herein, all references herein to any agreement
or other document of any description shall be construed to give effect to amendments,
supplements, modifications or any superseding agreement or document as then exist at the
applicable time to which such construction applies unless otherwise specified.
(e) References in the singular shall include references in the plural and vice
versa, pronouns having masculine or feminine gender will be deemed to include the other, and
words denoting natural persons shall include partnerships, firms, companies, corporations, limited
liability companies, joint ventures, trusts, associations, organizations or other entities (whether or
not having a separate legal personality). Other grammatical forms of defined words or phrases
have corresponding meanings.
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(f) Words not otherwise defined herein that have well known and generally
accepted technical or trade meanings are used herein in accordance with such recognized
meanings. Words referring to market rules, activities and practices shall have the meaning
generally ascribed to such words in California.
1.4 Authorized Representatives. Each Party shall provide Notice to the other Party
of the persons authorized to nominate and/or agree to a schedule or dispatch order for the delivery
or acceptance of Gas or any Product or make or receive other Notices on behalf of such Party
(“Authorized Representative”) and in connection with such Notices and specify the scope of their
individual authority and responsibilities. Either Party may change its designation of such persons
and the scope of their individual authorities and responsibilities from time to time in its sole
discretion by providing Notice.
2.1 Term.
(a) The “Contract Term” will commence upon the Execution Date and,
unless earlier terminated pursuant to Article V or Article XI, will continue throughout the
Delivery Term and until the date as of which all payment or delivery obligations arising under
this Agreement, including any compensation for the Products, Termination Payment,
indemnification payments or other damages, are paid in full (whether directly or indirectly, such
as through set-off or netting) and the collateral is released and/or returned as applicable.
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(b) The “Delivery Term” is the period commencing on the Initial Delivery
Date and continuing for a period of ___ years from the Initial Delivery Date unless earlier
terminated pursuant to Article V.
(c) The “Initial Delivery Date” shall be the later of (i) ______ (as may be
extended in accordance with Section 11.1(f) or Section 11.5) [Seller to insert date, which shall
be the first date of a month] (the “Expected Initial Delivery Date”) or (ii) the first day of the
month directly following satisfaction of the Conditions Precedent pursuant to the terms set forth
in Article XI.
(i) The Parties shall execute and exchange the “Initial Delivery Date
Confirmation Letter attached hereto as Appendix IV on the Initial Delivery Date.
2.2 Binding Nature. Except as explicitly provided herein, this Agreement shall be
effective and binding as of the Execution Date (“Effective Date”).
3.1 Transaction.
(a) Purchase and Sale Obligation. During the Delivery Term, Seller shall
sell and make available to Buyer and Buyer shall accept and pay, in accordance with the
provisions of this Agreement, for all the Monthly Contract Capacity of the Units which shall
convey to Buyer the right to receive all the Products provided by the Units, including those
Products associated with Capacity and Capacity Attributes in excess of the Monthly Contract
Capacity as described in Section 3.11(d) and pursuant to the terms and conditions contained
herein. The Parties acknowledge and agree that this Agreement is a forward contract (within the
meaning of the Bankruptcy Code, as in effect as of the Execution Date).
(i) Seller agrees that the Units meet and maintain all requirements
necessary to qualify as a resource capable of contributing to Buyer’s RAR or similar successor
requirements at all times during the Delivery Term. Seller’s obligations pursuant to this Section
3.1(b) shall include, but are not limited to, the obligations set forth in this Sections 3.1(b). Seller
agrees that it will take all measures necessary so that each Unit’s Capacity Attributes and/or
Capacity qualifies, is recognized, and is counted as RA Capacity subject to the Operational
Limitations as set forth in Appendix II. Seller will execute any and all documents or instruments
reasonably necessary to enable Buyer to use fully such RA Capacity to satisfy Buyer's RAR in
accordance with the Operational Limitations set forth in Appendix II. At its sole discretion,
Buyer may re-sell or use for another purpose all or a portion of the Capacity Attributes. If a
centralized capacity market develops within the CAISO region, Buyer will have exclusive rights
to offer, bid, or otherwise submit the Capacity and/or Capacity Attributes for re-sale in such
market, and retain and receive any and all related revenues. Seller’s obligations pursuant to this
Section 3.1(b) shall include the obligations set forth in subsections 3.1(b)(i) – (iv) below:
(i) Seller shall cooperate with and encourage the regional entity
responsible for RAR administration, including the CAISO, if applicable, to certify or qualify at
least Maximum Contract Capacity for RAR purposes. This includes following requirements the
CPUC has established and may establish in the future, including calculation of RA Capacity over
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all hours required for RAR eligibility, and delivery of the RA Capacity to the Electrical Delivery
Point.
(ii) Seller shall comply with the RAR reporting requirements set
forth in Section 40 of the CAISO Tariff, including but not limited to the following:
(A) taking all actions to register the Facility with the CAISO
to ensure that the Facility’s Capacity Attributes and/or Maximum Contract Capacity is able to be
recognized and counted as RA Capacity; and
(c) Control. Seller shall at all times during the Contract Term retain
operational control of each and all Units, be responsible for or cause Seller’s agent to be
responsible for, all operation and maintenance of each and all Units and Seller will bear all costs
related to development, construction, ownership, operation and maintenance of each and all
Units.
(i) Buyer shall have the exclusive right to any and all Products from
each Unit, and Seller shall not dispatch or operate a Unit, or any portion thereof, or sell any
Product associated with a Unit during the Delivery Term, to any Person other than Buyer other
than pursuant to an Instructed Operation. For the avoidance of doubt, during the Delivery Term,
Seller shall not cause the Unit to become subject to an RMR agreement or any other obligation to
operate a Unit or deliver a Product to any other Person other than pursuant to an Instructed
Operation, and Buyer shall have the exclusive right to enter into an RMR agreement with respect
to any Unit and/or resell any Product from any Unit, provided in each case that the RMR
agreement or resale would not result in a violation of the Operational Limitations of the affected
Unit.
(iii) Seller acknowledges and agrees that Buyer may take whatever
measures it elects to protest, challenge, eliminate, institute or modify any Instructed Operation,
which may include communicating directly with the Governmental Authority or Transmission
Provider, as applicable, responsible for such Instructed Operation.
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(iv) If during the Delivery Term Seller requires the ability to operate
the Facility other than pursuant to Scheduled Operations (for example, for the purpose of
conducting environmental testing or to test newly installed equipment), it shall Notify Buyer in
advance of such operation, and Buyer and Seller shall work in good faith to accommodate
Seller’s request; provided that, (A) such request is consistent with other provisions of this
Agreement, including 3.3, 3.5, and the timelines provided in 3.11(f), and (B) Seller shall be
liable for Buyer’s reasonable costs in accommodating Seller’s requests. Operations undertaken
pursuant to the prior sentence shall not be deemed to be part of Scheduled Operations, and Seller
shall bear the costs and receive the benefits of such operations, Start-Ups and Shut-Downs,
including any and all CAISO charges, as applicable.
(v) To the extent that Seller receives any payment associated with
the Products from a Unit during the Delivery Term, including non-Energy or fixed payments
received for or in connection with RAR, Instructed Operations or any RMR agreement, from any
Person (including the Transmission Provider) other than Buyer, Seller shall remit such payment
to Buyer (“Third Party Payments”); provided that, for the avoidance of doubt, nothing herein
precludes Seller from retaining credits related to Transmission Upgrades as contemplated
pursuant to Section 3.1(f). Invoicing and payment for all amounts due from one Party to the other
Party as necessary to implement this provision shall be done pursuant to Article VI.
(e) Unit Modifications. Absent the written consent of Buyer, which may be
withheld or delayed at Buyer’s sole discretion until such time as the terms of this Section 3.1(e)
are satisfied, Seller shall not, and shall not permit any other Person to:
(ii) modify the Capacity or the Heat Rate of the Units that are
committed to Buyer (as compared to its Design Capacity and Guaranteed Heat Rate); or
(iii) take any other action that would, or may reasonably be expected
to, impair or limit the ability of a Unit to supply Products to the Buyer, the ability of the Buyer to
make Gas available at the Gas Delivery Point, or the ability of Seller to deliver any and all
Products that the Unit is capable of producing, as set forth in Appendix II, as measured at the
Electrical Delivery Point, including the Maximum Contract Capacity.
Nothing in this Section 3.1(e) shall be deemed to limit or impair the ability of the
Seller to perform or cause to be performed routine maintenance in the ordinary course of
business, including those that may result in restoring Design Capacity or Heat Rate lost through
degradation, subject to the provisions of Section 3.8.
(i) Electric. The Parties acknowledge that the Parties have no rights
against each other or obligations to each other under this Agreement with respect to any
relationship between the Parties in which PG&E is acting in its capacity as an owner or provider
of electrical interconnection or transmission service. Thus, whether or not the Units are
interconnected to electrical transmission or distribution systems that are owned or operated by
PG&E, Seller’s arrangements for electrical interconnection and transmission must be made
separately with Seller’s Transmission Provider (which may be PG&E acting in its capacity as a
transmission provider) and, except for setting forth the rights and obligations of the Seller to
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(ii) Gas. The Parties acknowledge that the Parties have no rights
against each other or obligations to each other under this Agreement with respect to any
relationship between the Parties in which PG&E is acting in its capacity as an owner or provider
as a Gas LDC or in-state pipeline. Thus, whether or not the Units are interconnected to a Gas
transportation system that is owned or operated by PG&E, Seller’s arrangements for Gas
interconnection and transportation must be made separately with Seller’s LDC or in-state pipeline
(which may be PG&E in its capacity as an LDC or in-state pipeline).
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maintained, at its expense, the Fuel Handling Facilities such that the Fuel Handling Facilities are
capable of delivering Fuel to, at, and from the Gas Delivery Point to and at each Unit, in
quantities and at pressures that enable the Units to generate or produce the Products using the
Maximum Contract Capacity in accordance with the terms of this Agreement during each month
as applicable (in addition to such other quantities of Fuel as the Fuel Handling Facilities and Gas
Interconnection Facilities are required to deliver to the Facility) in accordance with the terms of
this Agreement.
(a) Title and Risk of Loss. Title to and risk of loss related to Gas shall
transfer from Buyer to Seller at the Gas Delivery Point.
(b) Buyer’s Gas. During the Delivery Term and subject to Section 3.3(f),
Buyer or Buyer’s agent will make Gas available at the Gas Delivery Point as necessary, at
Buyer’s expense, for all Scheduled Operations, Scheduled Start-Ups, Scheduled Shut-Downs, and
Buyer’s Performance Tests, in each case, as necessary to perform such operations as determined
by reference to the most recent Guaranteed Heat Rates or the Gas requirements set forth in
Appendix II, as applicable, excluding Gas burned during Failed Starts (cumulatively, “Buyer’s
Gas”); provided that the Products produced as a result of such operations are delivered to Buyer.
Any Gas used for Scheduled Operations, Scheduled Start-Ups, Scheduled Shut-Downs, and
Buyer’s Performance Tests in amounts other than as specified by the most recent Guaranteed
Heat Rates or as set forth in Appendix II, as applicable, shall be subject to the provisions of
Section 3.3(f) and 3.3(g). During the Delivery Term, Seller shall have the obligation to receive
Buyer’s Gas and to use it exclusively for Scheduled Operations, Scheduled Start-Ups, Scheduled
Shut-Downs, and Buyer’s Performance Tests, as directed by Buyer. Buyer’s Gas and Additional
Gas shall be provided only at the pressure and of the quality available from the interconnecting
pipeline or LDC. Buyer is a separate entity from the Gas LDC or transmission provider as
described in Section 3.1(f)(ii) and shall not be responsible for pipeline pressure and Gas quality at
the Gas Delivery Point. For the avoidance of doubt, if Gas pressure at the Gas Delivery Point is
for any reason insufficient to enable Seller to meet its obligations under this Agreement, it is
Seller’s responsibility to have available or to install compression downstream of the Gas Delivery
Point.
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(iii) Prior to Buyer taking over the gas supplier responsibility under
this Agreement, Seller shall use commercially reasonable efforts to ensure that zero Gas
imbalance is transferred to Buyer, or, if an imbalance position is transferred from Seller or
Seller’s Agent to Buyer, at Buyer’s election, Seller shall (A) pay Buyer for any under-delivery
imbalance (negative) or any over-delivery imbalance (positive) at the applicable LDC or Gas
pipeline rate or charge, including penalties, as applicable, and/or (B) if there is a negative
imbalance (ie. under-delivery), Seller shall pay Buyer at the Gas Index Price, Midpoint of a
future date or dates to be determined by Buyer.
(vi) Buyer and Seller shall promptly take all actions required by each
Gas LDC or transportation provider to terminate the assignment of the Transportation Contracts
to Buyer or to terminate Buyer’s authority to act as Seller’s agent under the Transportation
Contracts at the earlier of Buyer’s request or at the expiration or termination of this Agreement.
Buyer shall continue to make Gas available at the Gas Delivery Point until the expiration or early
termination of such assignments or authorizations or the expiration or termination of this
Agreement.
(d) Gas Transportation Costs. During the Delivery Term and subject to
Sections 3.3(e) and 3.3(f), Buyer or Buyer’s agent shall be responsible for arranging for the
transportation of all Buyer’s Gas, and for the payment of all charges, surcharges and fees related
to transportation of Buyer’s Gas, to the Gas Delivery Point, including inter-state, in-state and
LDC charges, surcharges and fees; provided that, if Seller pays such amounts (other than with
respect to Additional Gas), Buyer shall reimburse Seller in accordance with a verifiable invoice
from Seller (“Gas Reimbursements”). Notwithstanding the foregoing, Buyer shall not be
responsible for any charges, surcharges or fees assessed pursuant to, or associated with, (i) an
Exceptional Case Agreement; or (ii) any other agreement if such charges, surcharges or fees are
related to interconnection or construction costs; or (iii) failure to meet a minimum volume
requirement; or (iv) transportation, balancing or other costs not associated with the transportation
of Buyer’s Gas. Invoicing and payment for all amounts due from one Party to the other Party as
necessary to implement this provision shall be done pursuant to Article VI.
(e) Additional Gas. To the extent that during the Delivery Term Seller
desires to have Gas other than Buyer’s Gas (“Additional Gas”) made available at the Gas
Delivery Point, which shall be for testing purposes only per the terms of this Agreement, Seller
shall provide at minimum three (3) Business Days’ Notice to Buyer of the quantities of
Additional Gas required and the time at which the Additional Gas is required, and subject to
timely receipt of such Notice, Buyer shall make such Additional Gas available as necessary at the
Gas Delivery Point. Buyer shall receive a fee for this service equal to one cent ($0.01) per
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MMBtu plus one-half percent (0.5%) of the Gas Index Price, Midpoint (“Fuel Manager Fee”).
Buyer shall invoice Seller, and Seller shall pay, for the cost of Additional Gas in an amount equal
to the MMBtus of Additional Gas made available (exclusive of Buyer’s Gas) multiplied by the
Gas Index Price, Midpoint plus all transportation charges, surcharges, penalties and fees that have
been (or are to be) paid by Buyer related to the Additional Gas and the Fuel Manager Fee
(“Additional Gas Payment”). Seller shall be subject to the provisions of Sections 3.3(f) and
3.3(g) to the extent that Buyer incurs a Gas imbalance from the quantity of Additional Gas
requested by Seller to be made available at the Gas Delivery Point. Invoicing and payment for all
amounts due from one Party to the other Party as necessary to implement this provision shall be
done pursuant to Article VI.
(f) Gas True-up. During the Delivery Term, in addition to the provisions in
Section 3.3(e), Seller shall compensate Buyer, or Buyer shall compensate Seller, on a monthly
basis, based on a Daily Imbalance Amount for each individual day of the calendar month as
follows, with an example of the Gas True-up shown in Appendix VI.
Daily Imbalance Amount = Daily Actual Gas - Daily Qualified Gas - Additional Gas
where:
“Daily Actual Gas” (in MMBtu) shall equal the total quantity of Gas for
a calendar day as measured by the Gas meter at the Gas Delivery Point;
“Daily Qualified Gas” (in MMBtu) shall equal (x) the sum of Qualified
Gas over all Settlement Intervals in the day plus (y) Gas requirements for Scheduled Start-Ups
and Scheduled Shut-downs as specified in Appendix II, excluding Gas burned during Failed
Starts, plus (z) any Gas requirements for the Buyer’s Performance Tests not already accounted for
in items (x) and (y). The most recent Guaranteed Heat Rates corrected for ambient conditions
pursuant to meteorological data provided in Section 3.7(g) (or if Seller has not met the obligations
to provide data as specified in Sections 3.7(g) and 6.1, the Guaranteed Heat Rate Point at ISO
Conditions [for the applicable Configuration] as specified in Appendix II) shall be used for the
purpose of calculating Daily Qualified Gas. If there is more than one applicable Settlement
Interval in the Real-Time Market for the same period of time, the calculation of Daily Qualified
Gas shall include the sum of Settlement Intervals applicable to the final award or schedule in the
Real-Time Market;
(i) For each day in which the Daily Imbalance Amount is positive,
Seller shall owe Buyer an amount equal to (A) the Daily Imbalance Amount multiplied by Gas
Daily Index Price, High plus (B) all Gas transportation charges related to the Daily Imbalance
Amount that have been (or are to be) paid by Buyer.
(ii) For each day in which the Daily Imbalance Amount is negative,
Buyer shall owe Seller an amount equal to the absolute value of the Daily Imbalance Amount
multiplied by Gas Index Price, Low multiplied by fifteen percent (15%), provided that Seller has
met the obligation to provide data for settlement and compensation purposes pursuant to Section
3.7(g). If Seller has not met such obligations or if such obligations have not been waived by
Buyer, Buyer will not owe Seller in the event when the Daily Imbalance Amount is negative.
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(iii) Buyer shall calculate a monthly payment that nets any daily
payments from Seller to Buyer against payments from Buyer to Seller for the month (the “Gas
True-Up Payment”) and shall Notify Seller of Gas True-Up Payments due. The Gas True-Up
Payment shall be invoiced and paid pursuant to Article VI.
OFO Charge = Max [(((1 - High Inventory OFO Tolerance Band) x (Daily
Qualified Gas + Additional Gas)) – Daily Actual Gas), 0] x (OFO Noncompliance Rate)
OFO Charge = Max [(Daily Actual Gas - ((1 + Low Inventory OFO Tolerance
Band) x (Daily Qualified Gas + Additional Gas))), 0] x (OFO Noncompliance Rate)
If the LDC or Gas pipeline issues a simultaneous High Inventory OFO and Low
Inventory OFO, Seller will be assessed an OFO Charge, if any, by evaluating both clause (i) and
(ii) in the foregoing.
Buyer shall calculate a monthly OFO Charge that sums any OFO Charges and penalties
that Seller has incurred on a daily basis for the month and shall Notify Seller of payments due
pursuant to Article VI. An illustrative example of an OFO Charge calculation is provided in
Appendix VII. OFO charges discussed in this section 3.3(g) are separate and additional to any
charges in Section 3.3 (f).
(a) Electrical Delivery Point. The “Electrical Delivery Point” shall be the
specified point of interconnection for the Facility to the CAISO-controlled grid, and is identified
in Appendix II.
(b) Title and Risk of Loss. Title to and risk of loss related to each Product
shall transfer from Seller to Buyer from the Electrical Delivery Point.
(c) Seller’s Responsibility. During the Delivery Term, Seller shall arrange,
schedule and be responsible for electric interconnection, distribution and/or transmission service
and any and all costs or charges imposed on or associated with the Products or its delivery of the
Products, including electric distribution and/or transmission costs, distribution and/or
transmission losses, congestion costs and all risks and costs associated with any distribution
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and/or transmission outages or curtailment up to and at the Electrical Delivery Point. Seller’s
interconnection, distribution, and/or transmission arrangements shall provide for Full Capacity
Deliverability Status as of the Initial Delivery Date and throughout the Delivery Term.
(d) Buyer’s Responsibility. During the Delivery Term, Buyer shall arrange,
schedule and be responsible for electric transmission service and any and all costs or charges
imposed on or associated with the Products or its receipt of the Products with respect to
Scheduled Operations, including electric transmission costs, transmission losses, congestion costs
and all risks and costs associated with any transmission outages or curtailment, from and after the
Electrical Delivery Point.
3.5 Scheduling.
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Delivery Date as necessary to commence deliveries of Products (as applicable) on the Initial
Delivery Date. In its capacity as Seller’s representative to the CAISO, the Scheduling
Coordinator shall be responsible for exercising due diligence in processing and validating all
settlements for the Units and ensuring all settlements are valid.
(c) Buyer’s Dispatch Rights. During the Delivery Term, Buyer shall have
the exclusive right to bid, schedule, or designate any or all Units for the delivery of the Products,
in accordance with and up to the Operational Limitations set forth in Appendix II, in any CAISO
forward, day-ahead, hour ahead, real-time or intra-day markets, and Seller shall take all
reasonable steps within Prudent Electrical Practices to meet Buyer’s dispatch instructions and
CAISO instructions resulting from Buyer’s instructions. The Operational Limitations specified in
Appendix II shall allow Buyer to bid and/or schedule the Unit(s) for all hours of the day, seven
(7) days per week for all available Products, unless the Unit(s) are incapable of operations
pursuant due to an Outage, Excused Event, or operations pursuant to Section 3.1(d)(iv), as
specified in this Agreement.
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For Forced Outages, Seller shall Notify PG&E’s Real Time Desk within ten minutes of the event
as specified in Appendix III.
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amount; and if the net amount of such charges is negative for the month, Buyer shall pay that
amount to Seller. Seller and Buyer acknowledge and agree that if Seller Notifies Buyer of
updated availability of the Unit(s) after such time as Buyer has bid or scheduled the Units with
the CAISO for any particular period of time, Buyer will take action to notify the CAISO of the
Unit(s’) updated availability, which action does not eliminate Seller’s responsibility of Deviation
Charges for such period of time. Invoicing and payment for all amounts due from one Party to
the other Party as necessary to implement this provision shall be done pursuant to Article VI. An
example of Deviation Charges is provided in Appendix VIII.
(i) Seller shall pay Buyer a Forced Outage Compensation for each
Settlement Interval in the Forced Outage Evaluation Period as follows: If (A) the Unit is
experiencing a Forced Outage, (B) there exists a Day-Ahead Schedule for the Unit in the hour of
a given Settlement Interval, and (C) Instructed Imbalance Energy is negative for that Settlement
Interval, then:
where:
(ii) Seller shall pay Buyer a Forced Outage Compensation for each
Settlement Interval in the Forced Outage Evaluation Period as follows: if (A) the Unit is
experiencing a Forced Outage, (B) there exists a schedule or award for the Unit in the Real-Time
Market for the hour or partial hour of a given Settlement Interval, and (C) Instructed Imbalance
Energy is negative for the Settlement Interval, then:
where:
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(f) Other Products Charges. During the Delivery Term, Seller shall be liable
for any costs, charges, or penalties assessed by the CAISO to Buyer related to the inability of the
Unit(s) to provide or dispatch any scheduled or awarded Other Products as available to Buyer in
Appendix II, due to Uninstructed Deviation or a Forced Outage event (an “Other Products
Charge”), except to the extent any such obligations or liabilities arise solely as a result of any act
or omission of Buyer in its role as Scheduling Coordinator. Invoicing and payment for an Other
Products Charge shall be done pursuant to Article VI on a monthly basis.
(a) General Operations. Seller shall comply with all applicable requirements
of Law, the Transmission Provider, NERC and WECC relating to the Facility and the Site and the
transactions contemplated by this Agreement (including those related to development,
construction, safety, ownership and/or operation of the Facility or the Site and the transactions
contemplated by this Agreement and sale of Products therefrom). For the avoidance of doubt,
Seller shall be responsible for procuring and maintaining, at its expense, all Governmental
Approvals and all emissions credits required for operation of the Units throughout the Delivery
Term in compliance with Law and to permit operation of the Facility in accordance with this
Agreement, including as specified in Section 11.3(a)(v).
(b) Transmission Provider and WECC Standards. Each Party shall perform
all generation, scheduling and transmission services in compliance with all applicable (i)
operating policies, criteria, rules, guidelines, tariffs and protocols of the Transmission Provider,
(ii) WECC scheduling practices and (iii) Prudent Electrical Practices.
(c) Reliability Standard. Seller agrees to abide by all (i) NERC, WECC and
Transmission Provider reliability requirements and (ii) all of PG&E’s applicable requirements
regarding interconnection of the Units per this Agreement.
3.7 Metering.
(i) At Buyer’s specification: (A) all Products from the Units must
be delivered through a single Electric Revenue Meter and that meter must be dedicated
exclusively to all of the Units; or (B) all Products from each Unit must be delivered through an
Electric Revenue Meter dedicated exclusively to each respective Unit. All Energy must be
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measured by the Units’ Electric Revenue Meter to be eligible for payment under this Agreement.
Seller shall provide Buyer with access to all real-time meters, billing meters and back-up meters.
Seller shall authorize Buyer to view the on-line meter data from the Electric Revenue Meter.
Within Seller’s Meter Service Agreement with the CAISO, Seller shall identify Buyer as an
authorized user with “read only” privileges.
(ii) All Gas must be delivered through and measured by the Gas
Meter, which must be revenue quality. If such Gas Meter is not dedicated exclusively to a single
Unit, then all Gas used by such Unit shall be measured by a Gas submeter. In addition, Seller
hereby agrees to provide all meter and submeter data to Buyer as set forth in Section 3.7(g).
(b) Meter Installation and Testing. Seller shall, at its sole cost and expense,
cause the installation, maintenance, operation and replacement (as needed) of a meter to be used
as (i) the Electric Revenue Meter and back-up meters, in accordance with the Transmission
Provider’s metering protocols, at the Electrical Delivery Point to determine the amount of the
Energy produced by the Units and delivered to the Electrical Delivery Point, and (ii) the Gas
Meter and back-up meters, in accordance with the requirements of the interconnecting pipeline, at
the Gas Delivery Point, to determine the amount of Gas delivered to the Gas Delivery Point. To
the extent necessary to isolate data related to each Unit, Buyer may in its discretion, require Seller
to cause the installation, maintenance, operation and replacement of electrical and/or Gas
submeters, at Seller’s sole cost and expense; provided that each such submeter shall be of revenue
quality and sufficient for the purposes of providing the data contemplated by this Agreement.
Each Gas Meter and Electric Revenue Meter shall be locked or sealed only by, and the lock or
seal shall be broken only by, the interconnecting utility or Transmission Provider, as applicable.
Unless otherwise specified by Buyer, all of the submeters will be locked or sealed by both Parties,
which locks or seals will only be broken by both Parties for inspection, testing or adjustment.
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The meters shall meet all specifications of the Transmission Provider or interconnecting Gas
pipeline, as applicable, and all meters and submeters shall be tested annually by Seller, who shall
provide Buyer with not less than fourteen (14) days prior Notice of such tests. Testing
procedures and standards for submeters shall be the same as for a comparable utility-owned
meter. Buyer will have the right to have a representative present during such tests.
(d) Meter Retesting. Either Party may from time to time request a retest of
the meters and/or submeters if it reasonably believes that one or more of them are not accurate
within the tolerance limits established by the Transmission Provider or the interconnecting Gas
pipeline, as applicable. The requesting Party shall pay for any such retest and shall provide the
other Party with not less than 14 days prior Notice of such retest. Such other Party will have the
right to have a representative present during such retest.
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approve or disapprove of the location for commercially reasonable purposes. Any request by
Buyer for Seller to change the placement of the meteorological equipment shall be performed at
the cost of Seller. Such equipment as specified in this Section 3.7(f) shall be used for all
meteorological purposes under the terms of this Agreement, including settlement and
compensation purposes and testing. The sensors must meet the following specifications:
(g) Real-Time Data Information Systems. Seller shall deliver data to Buyer
through a secure communication link installed and paid for by Seller in order to provide Buyer
with access to the following data on a real-time and historical basis:
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In addition, all such data as described in this Section 3.7(g) shall be provided by
Seller to Buyer on a daily basis, in a form acceptable to Buyer, not later than one (1) Business
Day after each day of Product delivery, or in the case of daily recorded data disruption, no later
than five (5) Business Days after the day of Product delivery, which in each case shall be used for
settlement and compensation purposes. Seller shall maintain at least a minimum of one hundred
and twenty (120) days historical data for all data required pursuant to this Section 3.7(g). If
requested by Buyer, all such data described in this Section 3.7(g) shall also be provided by Seller
to Buyer real-time in one (1) minute intervals in the form of a flat file to Buyer through a secure
file transport protocol (FTP) system with an e-mail back up for each flat file submittal. If data
required pursuant to Section 3.7(g) is not provided by Seller in a format accepted by Buyer or
provided to Buyer in the timeframe specified in this Section 3.7(g), Buyer will use Guaranteed
Heat Rate Point for ISO Conditions (for the applicable Configuration) as specified in Appendix II
for the purposes of the Gas True-up Payment and Emissions Quantity calculations. Examples of
data formats acceptable to Buyer that comply with this Section 3.7(g) are provided in Appendix
X. Seller should begin coordination with Buyer at least ninety (90) days prior to the Initial
Delivery Date to prepare data systems and a format acceptable to Buyer to comply with this
Section 3.7(g).
(ii) by the earlier of (A) ninety (90) days before the calendar month
of delivery, or (B) forty-five (45) days prior to the delivery month’s RA Monthly Compliance
Showing, updating to the extent required the Maintenance Outage schedule previously Noticed to
Buyer for the next twelve (12) months starting with the calendar month of delivery.
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Buyer’s receipt of Seller’s Maintenance Outage schedule proposal, Buyer shall Notify Seller of
Buyer’s approval, or, if Buyer desires to modify a Seller-proposed Maintenance Outage prior to
submittal to the CAISO, the Parties shall work together in good faith to accommodate the desired
changes. Buyer, as the Units’ SC, shall then submit the proposed Maintenance Outage schedule
to the CAISO, which shall be subject to approval by the CAISO. If such Outage schedule is then
approved by the CAISO, it shall be deemed a Scheduled Maintenance Outage, and Seller shall
adhere to the timelines of the CAISO-approved Scheduled Maintenance Outage. Only those
Scheduled Maintenance Outages that meet the submittal timelines in Section 3.8(b), do not
violate the hourly limitations set forth in Section 3.8(e), are approved by the CAISO, and are
approved in writing by Buyer in accordance with Appendix III (Section D), shall be deemed an
Excused Scheduled Maintenance Outages. As noted in Appendix III, any change made to a
previously approved Excused Scheduled Maintenance Outage outside of the approved window of
time is deemed a new Outage request and is subject to re-approval from Buyer.
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Table 3.8(e)
[Note: Seller shall fill in the table below. Buyer will verify whether the requested Major
Maintenance schedule is appropriate to the technology manufacturer’s specifications.]
Total Excused
Major Maintenance Equivalent Operating Equivalent Starts- Scheduled
overhaul event Hours-based Interval based Interval Maintenance Outage
hours
Combustor
Inspection
Hot gas Path
Inspection
Major Inspection
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Scheduled Maintenance Outage,” and Seller shall adhere to the Outage schedule approved by the
CAISO for that Outage. At any time, Buyer may request that Seller re-schedule its Unexcused
Scheduled Maintenance Outage, in which case Seller shall Notify Buyer of any incremental costs
associated with the schedule change and an alternative schedule change, if any, that would entail
lower incremental costs. If Buyer’s proposed change to Seller’s Unexcused Scheduled
Maintenance Outage Schedule is feasible and imposes no incremental costs (as compared to
Seller’s proposed schedule) or if Buyer agrees to pay the incremental costs, Seller shall use
commercially reasonable efforts to accommodate Buyer’s request and Buyer, as the SC, shall
communicate the change to the CAISO and seek CAISO approval for the revised Unexcused
Scheduled Maintenance Outage. However, unless it is transmitting to Seller a CAISO order,
Buyer may not change Seller’s Unexcused Scheduled Maintenance Outage schedule unilaterally.
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(d) Force Majeure Failure. Buyer shall have the right, but not the obligation,
to terminate this Agreement after the occurrence of the following:
(a) Operations Logs. Seller shall maintain a complete and accurate log of all
material operations on a daily basis. Such log shall include, but not be limited to, information on
power production, fuel consumption, efficiency, availability, maintenance performed, Outages,
electrical characteristics of the generators and similar information relating to the availability,
testing and operation of the Units and availability and production of the Products. Seller shall
provide this information electronically to Buyer within 30 days of Buyer’s request.
(b) Access Rights. Buyer, its authorized agents, employees and inspectors
shall, while observing safety requirements, have the right of ingress to and egress from the Units
and the Facility at any time and for any purposes reasonably connected with this Agreement,
including verification of the Units’ availability or unavailability. Buyer shall make reasonable
efforts to coordinate its emergency activities with the safety and security departments, if any, of
the Project operator. Seller shall keep Buyer advised of current procedures for contacting the
Project operator’s safety and security departments.
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no later than thirty (30) days after the Initial Delivery Date], the results of which shall be
applicable to Seller as of the Initial Delivery Date.
(ii) During each Contract Year of the Delivery Term, Buyer may
request Seller to perform up to two Performance Tests upon Notice of no less than twenty-four
(24) hours (“Standard Performance Tests”). Buyer’s decision to forgo any such test shall not be
deemed a waiver of Buyer’s right to require any subsequent test.
(ii) The Performance Test shall consist of six (6) one-half-hour test
periods (the “Test Period”) at one hundred percent (100%) of Base Load with all turbines
operating simultaneously [and six (6) one-half-hour test periods with all turbines operating
simultaneously with duct firing “Peak Load”, if applicable]. [Language is for a combined
cycle facility. For simple cycle facilities, test each turbine individually. For facilities other than
simple cycle or combined cycle technology, specify the applicable test requirements. Facilities
that have multiple operating modes may be subject to additional testing requirements as
necessary to test the full range of capability of the Units.] For each one-half-hour test period,
the data will be averaged and adjusted both to ISO Conditions as well as Peak July Conditions.
(iii) The Units shall be operated in steady state with all equipment in
normal operating service.
(iv) The Energy output of the Units during the Performance Test
shall be measured by the Electric Revenue Meter for Delivered Energy at the Electrical Delivery
Point.
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Days of receipt of the revised Performance Test results, Buyer shall approve such revised
Performance Test results or shall specify to Seller the reasons why the results cannot be approved
as submitted, which again shall trigger Seller’s obligation to deliver revised Performance Test
results and Buyer’s obligation to approve or specify the reasons for nonapproval with respect to
such revised Performance Test within five (5) Business Days of receipt thereof. If Buyer has met
its five (5)-Business Day response deadlines as specified above, and if Performance Test or
revised Performance Test results have not been approved by Buyer within sixty (60) days of the
Performance Test (“Test Results Deadline”), then Buyer shall have the right to withhold ten
percent (10%) of each Monthly Fixed Payment from the next payment due after the Test Results
Deadline until Buyer has received and approved such Performance Test results. Buyer’s approval
of test results may not be unreasonably withheld or delayed and shall constitute verification that
the Test Procedures have been correctly implemented.
(vii) Buyer may have a representative present at the Site at any time
during a Performance Test, or alternatively, at Buyer’s request, all necessary and requested test
information shall be provided to Buyer during the test without the need of a Buyer representative
on Site. Buyer has the right to require Seller’s test engineer to be at the Site for the test.
(viii) Seller shall determine the Heat Rate of the Unit(s) during any
Performance Test, the results of which, as adjusted to ISO Conditions, shall be the “Actual Tested
Heat Rate” of the Unit. Procedures for Heat Rate testing shall be conducted in general
accordance with the applicable ASME test code and in accordance with Test Procedures.
(x) Seller shall prepare the Test Procedures based upon Appendix XI
and provide the same to Buyer at least one-hundred and eighty (180) days prior to the Initial
Delivery Date. The Parties shall finalize mutually acceptable Test Procedures at least thirty (30)
days prior to the Initial Performance Test.
(i) subject to Section 3.11(d)(ii), Seller shall bear all non-fuel costs
of each Performance Test other than the Buyer’s Performance Tests;
(ii) with respect to the Buyer’s Performance Tests only, Buyer shall
accept all Energy produced during such testing;
(iii) with respect to the Buyer’s Performance Tests, only, Buyer shall
make Gas available as required to carry out such testing; and
(v) During the Delivery Term, all Gas supplied for a Seller’s
Performance Test and the Initial Performance Test shall be treated as Additional Gas; and
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(vi) Seller shall bear the costs or receive the benefits of operations,
Start-Ups and Shut-Downs required for Seller’s Performance Test and the Initial Performance
Test, including any and all CAISO charges and in accordance with the provisions of Sections 3.3
and 3.5, as applicable.
(i) For New Facilities, the Initial Performance Test shall be used to
determine whether Seller has met the criteria to be declared Commercially Operable. For
Existing Facilities and during the Delivery Term, the Initial Performance Test shall be used to
confirm or adjust the Monthly Contract Capacity amounts.
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costs, provided that invoicing and payment for all amounts due from one Party to the other Party
as necessary to implement this provision shall be done pursuant to Article VI.
(g) Operational Limitations Tests. Buyer also has the right to require
additional types of tests to verify the Facility and/or Unit is performing in accordance with the
Operational Limitations specified in Appendix II (“Operational Limitations Tests”). The Parties
shall finalize Additional Test Procedures specific to the nature of the test at least thirty (30) days
prior to each Operational Limitations Test. If the results of an Operational Limitations Test are
outside the tolerance band specified within the Additional Test Procedures for such Operational
Limitations Test, then Buyer will assess a penalty until such time as the deficiency is remedied by
Seller as demonstrated by a Seller’s Performance Test (“Operational Limitations Test Penalty”).
Operational Limitations Test Penalties shall start on the first day after the Operational Limitations
Test indicates an operational deficiency and shall continue to be assessed until the first day after
the operational deficiency is remedied by a Seller’s Performance Test. An Operational
Limitations Test Penalty shall be assessed within the Availability compensation calculation in
Section 4.1(b) by considering all hours and partial hours during this period to be considered
UNAVAILPRODHRS.
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Tested Capacity as established by Seller is excessively high such that the Monthly Contract
Capacities should have been adjusted downward, the invoices shall be adjusted retroactively in
accordance with the revised Tested Capacity and revised Monthly Contract Capacities
(notwithstanding any provision of this Agreement that requires prospective adjustment of the
Monthly Contract Capacity), and Buyer may set off the overpaid amount, with interest calculated
at the Interest Rate, from subsequent monthly payments, retroactive to the date on which the
Monthly Contract Capacities should have been adjusted.
3.12 Operating Procedures. Prior to the Initial Delivery Date, the Parties shall
mutually develop written procedures governing operations, not in contravention or amendment of
any right or obligation set forth herein including, but not be limited to, (a) procedures for
scheduling and dispatch, (b) methods of day-to-day communications, (c) key personnel lists, (d)
record keeping, and (e) such other procedures and protocols as the Parties deem appropriate for
implementation of this Agreement (the “Operating Procedures”); provided that failure to agree
on such procedures shall not relieve either of the Parties of its obligations under this Agreement.
The Operating Procedures are provided in Appendix XIII.
4.1 Availability.
where:
TPEm is the total amount of Energy (measured in MWh) that the Units could
have produced for the month (“m”) to which the calculation applies if the Units had been
scheduled at their full Monthly Contract Capacity (“MCC”) for such month (measured in MW)
for every hour in which the Units were Available to operate for Buyer less the Energy which is
could have been produced due to MAINTHRSm, UNAVAILHRSm, and UNAVAILPRODHRSm
(as defined below). To the extent the Units were unavailable to Buyer due to Instructed
Operations, Excused Events, or Operational Limitations in Appendix II, the Units shall be
deemed to have been Available for purposes of determining TPEm and therefore no deduction is
made for such hours.
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where:
MAINTHRSm is the total amount of hours that the Units were unavailable due to
Excused Scheduled Maintenance Outages or Force Majeure declared by Seller during the month,
provided that the number of hours of Outages due to Excused Scheduled Maintenance Outages
shall not exceed the maximum number of hours per year permitted for Excused Scheduled
Maintenance Outages pursuant to Section 3.8(e)(iii) and the number of hours of Outages due to
Force Majeure declared by Seller shall not exceed the number of Excused Hours available to the
Seller at the end of the applicable month. An Excused Scheduled Maintenance Outage or Force
Majeure (declared by Seller) that results in partial Outage of the Units or occurs less than a full
hour will count as an equivalent percentage of the applicable hour(s) for this calculation. For
example, if the Units’ capacity was reduced by ten percent (10%) for twenty (20) hours due to an
Excused Scheduled Maintenance Outage, then the Units shall be deemed unavailable due to an
Excused Scheduled Maintenance Outage for two (2) full hours.
UNAVAILHRSm, consists of each hour or partial hour in which the Units were
unavailable to deliver Energy to Buyer due to (i) a Forced Outage; (ii) an Unexcused Scheduled
Maintenance Outage; (iii) Force Majeure declared by Seller, but only to the extent the number of
hours of Force Majeure exceed the cumulative number of Excused Hours available to the Seller
as of the end of the applicable month; (iv) an extension of an Excused Scheduled Maintenance
Outage from its original Outage schedule that was not Notified to Buyer prior to the timelines
specified in Section 3.8; (v) any Notice of Unit availability that is below the Minimum Load of a
given Unit (per Appendix II) in which case all such hours when availability is below Minimum
Load will be counted as unavailable.
Hours in which the Units are deemed unavailable shall be included in the
determination of UNAVAILHRSm or UNAVAILPRODHRSm to the extent of the Units’
unavailability (which may be less than one hundred percent (100%)), such that TPEm reflects a
proportional downward adjustment from the MCC for deratings, partial Outages and partial hours
of unavailability of the Units or any Other Products, as well as for full hours in which the Units
were entirely unavailable.
If Seller identifies the Units as unavailable, in whole or in part, for any hour, the
Units shall be deemed unavailable for that hour (to the extent of such unavailability) for purposes
of the Availability calculation, provided that if Seller provides a revised Notice, indicating the
Units are available for an hour in which they were previously deemed unavailable, by 5:00 a.m.
of the morning Buyer schedules or bids the Units in the Day-Ahead Market, all of the available
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Capacity of the Units will be deemed to be available for such hour for purposes of determining
TPEm; and if Seller provides a revised Notice, indicating the Units are available for an hour in
which they were previously deemed unavailable, at least sixty (60) minutes prior to the time the
Buyer is required to schedule or bid the Units in the Real-Time Market, and the Units are
dispatched in the Real-Time Market, all of the available Capacity of the Units will be deemed to
be available for such hour for purposes of determining TPEm.
Sample calculations of “Availability” are set forth in Appendix XIV and includes
the application of the Availability Adjustment described in Section 4.1(c) below.
If Availability is greater than or equal to 98% but less than 99%, then
AA=100%;
if Availability is less than 98%, but not less than 70%, then
AA = 100% - [(98% - Availability) x 2]; and
if Availability is less than 70% then AA=0
(i) Seller shall guarantee the Facility’s Heat Rate as set forth in
Appendix II (“the Guaranteed Heat Rate”) over the following range of dispatchable operational
levels [if applicable: for each operational configuration of one or more Units] at the mean Site
elevation at standard ISO Conditions (59º F, sixty percent (60%) relative humidity):
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(i) Prior to the Initial Delivery Date, the Initial Performance Test
shall include a test to establish the Capacity of the Facility at one hundred percent (100%) Base
Load (“Initial Base Capacity Test”). The output (measured in MWs) corrected to ISO Conditions
determined from this test shall be the “Initial Base Capacity” (Ci). The Initial Performance Test
shall also include tests to establish the Capacity for one hundred percent (100%) of Base Load at
each operational configuration of one or more Units (Cix, where x is the number of Units in the
operational configuration) and to establish the Capacity for one hundred percent (100%) of Base
Load separately for each combustion turbine.
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(iii) The “Initial Base Load Guaranteed Heat Rates” (HRi) for the
Facility and each operational configuration of one or more Units at varying output levels from
Minimum Load to one hundred percent (100%) of Base Load shall be the appropriate subset of
the Guaranteed Heat Rate Curves defined in 4.2(a)(ii) and shown in Appendix II. The ratio of
Unit output to Unit Capacity shall be the ratio of Unit output to Ci until Cb has been determined,
at which point it shall be the ratio of Unit output to Cb, as determined from the most recent
Performance Test.
CDF = 1 – (Cb/Ci);
The “Base Load Heat Rate Adjustment” (“HRA”) will be computed as:
The “Adjusted Base Load Guaranteed Heat Rate” (HRc) for varying Unit
output will be determined as the Heat Rate obtained by entering the HRi curve fit equation at the
ratio of Unit output to Cb (or Ci if Cb has not yet been determined), and multiplied by (1 + HRA),
where:
(c) Guaranteed Heat Rate Adjustment from One Hundred Percent (100%) of
Base Load to Peak Load. [if applicable]
(i) Prior to the Initial Delivery Date, the Initial Performance Test
shall include a test to establish the Capacity of the Facility at Peak Load (“Initial Peak Capacity
Test”). The output (measured in MWs) corrected to ISO Conditions determined from this test
shall be the “Initial Peak Capacity” (PCi). The Initial Performance Test shall also include tests to
establish the Capacity for Peak Load at each operational configuration of one or more Units (PCix,
where x is the number of Units in the operational configuration) and to establish the Capacity for
Peak Load separately for the operational configuration of one or more Units.
(iii) The “Adjusted Peak Load Guaranteed Heat Rate” for varying
Unit output will be determined by applying the IDFHR for all dispatch levels between Ci and PCi
and the subsequent Capacity results from testing: Cb and PCb.
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Examples of the calculations described in Sections 4.2(a) – (c) above can be found in
Appendix XV.
(d) Seller shall provide no later than twelve (12) months prior to the Initial
Delivery Date (i) the correction curves for power and Heat Rate to correct for changes in ambient
dry bulb temperature from the ISO Conditions, (ii) the correction curves for power and Heat Rate
to correct for changes in ambient relative humidity from the ISO Conditions, and (iii) the
correction curves for power and Heat Rate to correct for changes in ambient barometric pressure
from ISO Conditions (collectively with the Guaranteed Heat Rate Curve tables set forth in
Appendix II, the “Guaranteed Heat Rate Correction Curves”), which will be deemed incorporated
into Appendix II when provided. The Guaranteed Heat Rate Correction Curves shall consist of
[two] curve segments [if duct firing available]: (A) the Base Load Guaranteed Heat Rate curves
for operations between Minimum Load and one hundred percent (100%) of Base Load, and (B)
[if applicable] the Peak Load Guaranteed Heat Rate curves from one hundred percent (100%) of
Base Load to Peak Load. The curve fit equations will be used for determination of all Guaranteed
Heat Rates, with graphical format provided for information purposes only.
(i) The Capacity Payment Rate (“CPR”) in each Contract Year shall
be as follows:
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(b) Product Payment Obligations. During each month of the Delivery Term,
Buyer shall pay Seller, in arrears, total compensation (TCm) calculated pursuant to the equation
below using the component parts described in detail in Section 4.3 through 4.6:
TCm = MFPm + MVPm + Start-Up Paymentm – Failed Start Penalty m + Other Payment
Adjustments
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where,
MAFm is the monthly allocation factor set forth in Appendix XVI for
such month; provided that ninety (90) days prior to a start of a full calendar year, Buyer may
Notify Seller of modifications to Appendix XVI. Buyer may not modify Appendix XVI such that
any individual month has a percentage allocation of less than four percent (4%) or greater than
fifteen percent (15%); or such that the sum of the twelve products of the MFP for each month
multiplied by the applicable MCC for that month is less than it would have been prior to the
modification. The sum of the twelve (12) monthly allocation factors in any calendar year must
equal one hundred percent (100%).
where,
where,
∑ is from i=1 to n ;
m = relevant month “m” in which a VOM payment is made;
i = the Settlement Interval in month “m” ;
n = total number of Settlement Interval in month “m” ;
VOMRy = the VOMR in Contract Year “y” corresponding to
month “m”.
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where,
∑ is from h=1 to n ;
n = number of hours in month “m”;
Fired Hour = an hour in which a given Unit was generating at
Minimum Load or higher from the time of Start-Up until
the initiation of Shut-Down as required pursuant to
Scheduled Operations. If Delivered Energy at or above
Minimum Load pursuant Scheduled Operations reflects
a partial hour on-line time, the Fired Hour shall be
accounted for as a percentage of that full hour, rounded
to two decimal places.
FHCy = the FHC in Contract Year “y” corresponding to month
“m” .
4.4 Start-Up Payment. Each month of the Delivery Term, Buyer shall pay Seller in
arrears, a payment only for Start-Ups that have been verified to be Successful Scheduled Start-
Ups (the “Start-Up Payment”). The Start-Up Payment shall be the Start-Up Rate specified below
for each type of Start-Up multiplied by the number of Successful Scheduled Start-Ups for each
type of Start-Up. The “Start-Up Rate” is as follows: $___ per Hot Scheduled Start-Up; $___ per
Warm Scheduled Start-Up; and $___ per Cold Scheduled Start-Up. The Start-Up Rates shown
above shall apply commencing in the first Contract Year and be indexed annually thereafter at the
beginning of each successive Contract Year by ________ percent (___%). An example of the
calculation of a Start-Up Payment is provided in Appendix XX.
4.5 Failed Start Penalty. A Failed Start Penalty shall be payable by Seller to Buyer
and determined in accordance with this Section. Invoicing and payment for all amounts due from
one Party to the other Party as necessary to implement this Section 4.5 shall be done pursuant to
Article VI. A “Failed Start” shall be deemed to occur for each Scheduled Start-Up of a Unit that
is not a Successful Scheduled Start-Up. [For Existing Facilities: Seller is allowed two (2)
Excused Failed Starts for the Facility in any Contract Year.] [For New Facilities: Seller is
allowed five (5) Excused Failed Starts for the Facility in the first Contract Year, three (3)
Excused Failed Starts for the Facility in the second Contract Year, and two (2) Excused
Failed Starts in any Contract Year after the second Contract Year for the Facility.]
(a) Failed Start Penalty Calculation. For each subsequent Failed Start after
Seller has exceeded the allowed number of Excused Failed Starts in a given Contract Year, Seller
shall pay to Buyer, for the Unit that had a Failed Start, an amount equal to the Failed Start Rate
multiplied by the Monthly Contract Capacity (in MWs) for the calendar month in which the
Failed Start occurred (“Failed Start Penalty”); provided that, if the Seller notifies Buyer that the
Unit that experienced a Failed Start is available for operation commencing in an hour no later
than the second hour following the hour in which the Failed Start occurred, and if the Buyer or
the CAISO calls upon that Unit during the day in which the Failed Start occurred (following the
Failed Start) and the Unit has a Successful Scheduled Start-Up, then the amount due to Buyer
from Seller for the Failed Start immediately preceding such Successful Scheduled Start-Up shall
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be discounted by seventy-five percent (75%). If events of the preceding proviso occur, such
events shall not be considered an Excused Failed Start.
(b) Annual Failed Start Penalty. The sum of all Failed Start Penalties for the
Facility in a given Contract Year shall be the “Annual Failed Start Penalty.” Buyer shall invoice
Seller for the Annual Failed Start Penalty following the end of each Contract Year, if applicable,
and Seller shall pay the Annual Failed Start Penalty to Buyer, or Buyer may offset that amount
against subsequent invoices to Seller pursuant to Article VI, in equal monthly installments over a
period of twelve (12) months (or such shorter number of months as are then remaining in the
Delivery Term) on the Monthly Payment Date beginning with the month in which the first such
invoice is rendered.
An example of the calculation of the Failed Start Penalty and the Annual Failed
Start Penalty is provided in Appendix XXI.
(c) Payment Upon Termination. If Seller owes all or a portion of any Failed
Start Penalty payment to Buyer as of the Early Termination Date or the end of the Delivery Term,
as applicable, Seller shall pay Buyer the remaining balance as part of the applicable Termination
Payment.
(a) Seller will be deemed a Defaulting Party upon the occurrence of any of
the following (each a “Seller’s Event of Default”):
(i) Any asset of Seller that is material to its performance under this
Agreement is taken by or is subject to any attachment by any creditor of or claimant against
Seller and the attachment is not disposed of within twenty-one (21) days after its levy.
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(vi) The Conditions Precedent to the Initial Delivery Date are not
satisfied or waived on or before [For New Facilities: three hundred and sixty five (365) days;
for Existing Facilities: three (3) months]after the Expected Initial Delivery Date, or, [for New
Facilities:,a delay of more than three hundred and sixty five (365) days in completing any
Critical Milestone], in each case, as extended due to Force Majeure in accordance with Section
11.5, if applicable, or due to Buyer’s failure to obtain CPUC Approval on the merits in response
to the Approval Application in accordance with Section 11.1 and providing that termination for a
Force Majeure delay or failure to obtain CPUC Approval shall not result in a Termination
Payment;
(xi) The Actual Tested Heat Rate of a Unit at one hundred percent
(100%) of Base Load is five percent (5%) greater than the Guaranteed Heat Rate Point at one
hundred percent (100%) of Base Load unless Seller is able to cure the deviation and demonstrate
within the following thirty (30) days that the Actual Tested Heat Rate of such Unit at one hundred
percent (100%) of Base Load is no more than five percent (5%) greater than the Guaranteed Heat
Rate Point at one hundred percent (100%) of Base Load.
[(xii) The Actual Tested Heat Rate of a Unit at Peak Load is five
percent (5%) greater than the Guaranteed Heat Rate Point at Peak Load unless Seller is able to
cure the deviation and demonstrate within the following thirty (30) days that the Actual Tested
Heat Rate of such Unit at Peak Load is no more than five percent (5%) greater than the
Guaranteed Heat Rate Point at Peak Load.]
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(b) Either Party will be deemed a Defaulting Party upon the occurrence of
any of the following (each a “Party’s Event of Default”):
(iii) A Party fails to pay an amount when due and such failure
continues for ten (10) Business Days after Notice thereof is received by the Party failing to make
such payment.
(vi) A Party fails to perform any of its material obligations under this
Agreement not otherwise addressed in this Section 5.1, and such default (which is not otherwise
specified to be an Event of Default hereunder) continues for thirty (30) days after Notice thereof
is received, specifying the failure; provided, however, that such period shall be extended for an
additional reasonable period if cure cannot be effected in thirty (30) days and if corrective action,
reasonably calculated to cure the default within a reasonable period of time, is instituted by the
Defaulting Party within the thirty (30) day period and so long as such action is diligently pursued
until such default is corrected, not to exceed one hundred twenty (120) days.
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Payment will be the aggregate of the Losses and Costs of the Non-Defaulting Party, offset by its
Gains, if any, calculated by the Non-Defaulting Party as of the Early Termination Date, expressed
in U.S. dollars, which the Non-Defaulting Party incurs as a result of the liquidation of the
transaction and which shall never be less than zero (“Settlement Amount”); provided that:
5.3 Rights And Remedies Are Cumulative. The rights and remedies of a Party
pursuant to this Article V shall be cumulative and in addition to the rights of the Parties otherwise
provided in this Agreement; provided that the Termination Payment shall be the sole remedy for
damage due to termination of this Agreement (but shall not preclude recovery by a Party for other
damages sustained as a result of an Event of Default).
5.4 Waiver. The Non-Defaulting Party shall be deemed to have waived its rights to
declare an Early Termination Date and to demand remedies under Section 5.2, if (a) the Non-
Defaulting Party fails to provide Notice of an Early Termination Date within one hundred eighty
(180) days of the date on which the Event of Default becomes known, or reasonably knowable, to
the Non-Defaulting Party and (b) the cause of the Event of Default is no longer continuing as of
the date on which the Non-Defaulting Party issues its Notice declaring an Early Termination
Date; provided, however, that the time period for providing Notice of an Early Termination Date
and a demand for remedies will not be deemed waived if (i) the Defaulting Party has consented to
an extension of time or (ii) the Non-Defaulting Party has provided Notice of the breach and the
Defaulting Party has represented that it is seeking to cure and the delay in providing such Notice
is in reliance by the Non-Defaulting Party on the good faith attempt by the Defaulting Party to
cure. A Party may not withhold payments or suspend performance under Section 5.2 for a period
of more than twenty (20) Business Days unless an Early Termination Date has been declared, and
Notice thereof given, in accordance with Section 5.2.
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(a) Seller shall provide Buyer with Seller’s calculation of the Emissions
Quantity for the preceding calendar month with Seller’s invoice. If data required pursuant to
Section 3.7(g) is not provided by Seller in a format accepted by Buyer or is not provided to Buyer
in the timeline specified herein, Buyer will use the Guaranteed Heat Rate Point for ISO
Conditions [for the applicable Configuration] as specified in Appendix II for the purposes of the
Gas True-up Payment and Emissions Quantity calculations.
(b) On or before the 15th calendar day following each month of the Delivery
Term, Seller shall invoice Buyer, in arrears, for all amounts due from Buyer to Seller under this
Agreement, including, as applicable:
(ii) MVP,
(c) On or before the 15th calendar day following each month of the Delivery
Term (unless otherwise noted below), Buyer shall invoice Seller, in arrears, for all amounts due
from Seller to Buyer (or credited by Buyer to Seller) under this Agreement, including, as
applicable:
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provided that the invoice may include a statement of the Carbon Dioxide
Emissions Payment calculated in accordance with Section 9.3. For the avoidance of doubt,
Settlement Data from the CAISO for the Units shall be used to represent Scheduled Operations,
as applicable, in all payment calculations performed pursuant to this Section 6.1. If Seller does
not have access to this data, Buyer shall provide Seller with such data no later than five (5)
Business Days after the close of each calendar month. If, in any Settlement Interval, Settlement
Data is unavailable, the Parties shall base Scheduled Operations for that Settlement Interval, if
applicable, on (A) any oral or electronic record of dispatch instructions from Buyer or the
CAISO, or if the records of this subsection (A) are not available, then Scheduled Operations shall
be based on (B) ADS dispatch instructions, or if the records and instructions of both subsections
(A) and (B) are not available, then Scheduled Operations shall be based on (C) Delivered Energy
for the Units. In each case, invoices shall include amounts accrued under this Agreement in the
preceding month, provided that to the extent the determination of amounts due under this
Agreement are based on invoices rendered by the CAISO, Gas pipelines, LDCs, or Governmental
Authorities in the preceding month, the Parties acknowledge and agree that such amounts may
relate to prior calendar months, as adjusted from time to time.
6.2 Netting. If each Party is required to pay the other an amount in the same month
pursuant to this Agreement, then the Party owing the greater aggregate amount will pay to the
other Party the difference between the amounts owed. Buyer is expressly authorized to set off
from any of its payments hereunder an amount owed by Seller to Buyer in accordance with this
Agreement.
6.3 Payment. Payment of all undisputed amounts owed shall be due by the later of
ten (10) days after delivery of the owed Party’s invoice or the twentieth day of the month
(“Monthly Payment Date”). If either the invoice due date or Monthly Payment Date is not a
Business Day, then such invoice or payment shall be provided on the next following Business
Day. Each Party will make payments by electronic funds transfer, or by other mutually agreeable
method(s), to the account designated by the other Party. Any undisputed amounts not paid by the
Monthly Payment Date will be deemed delinquent and will accrue interest at the Interest Rate,
such interest to be calculated from and including the Monthly Payment Date to but excluding the
date the delinquent amount is paid in full.
6.4 Disputes and Adjustments of Invoices. In the event an invoice or portion thereof
or any other claim or adjustments arising hereunder, is disputed, payment of the undisputed
portion of the invoice shall be required to be made when due, with Notice of the objection given
to the other Party. Any invoice dispute or invoice adjustment shall be in writing and shall state the
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basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the
dispute is resolved. The Parties agree to use good faith efforts to resolve the dispute or identify
the adjustment as soon as possible in accordance with the provisions of Article XII (Dispute
Resolution). Upon resolution of the dispute or calculation of the adjustment, any required
payment shall be made within fifteen (15) calendar days of such resolution along with interest
accrued at the Interest Rate from and including the due date, but excluding the date on which the
payment is made. Inadvertent overpayments shall be returned upon request or deducted by the
Party receiving such overpayment from subsequent invoices, with interest accrued at the Interest
Rate from and including the date of such overpayment to but excluding the date repaid or
deducted by the Party receiving such overpayment. Any dispute with respect to an invoice is
waived unless the other Party is Notified in accordance with this Section 6.4 within twelve (12)
months after the invoice is rendered or any specific adjustment to the invoice is made. If an
invoice is not rendered within twelve (12) months after the close of the month during which
performance giving rise to the payment obligation occurred (or in the case of amounts based on
CAISO or Gas supplier or Gas transporter invoices, within twelve (12) months after the close of
the month during which such invoice or revised invoice giving rise to the payment obligation was
rendered), the right to payment for such performance is waived. Seller waives the right to dispute
Buyer’s calculation of the Gas True-up Payment and the Emissions Quantity if Seller has not
provided Buyer with data as specified in Sections 3.7(g) and 6.1.
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8.1 Buyer Financial Information. If requested by Seller, Buyer shall deliver to Seller
(a) within one hundred twenty (120) days after the end of each fiscal year with respect to PG&E
Corporation, a copy of PG&E Corporation’s annual report containing audited consolidated
financial statements for such fiscal year and (b) within sixty (60) days after the end of each of
PG&E Corporation’s first three fiscal quarters of each fiscal year, a copy of PG&E Corporation’s
quarterly report containing unaudited consolidated financial statements for each accounting
period prepared in accordance with Generally Accepted Accounting Principles. Buyer shall be
deemed to have satisfied such delivery requirement if the applicable report is publicly available
on www.pge-corp.com or on the SEC EDGAR information retrieval system; provided however,
that should such statements not be available on a timely basis due to a delay in preparation or
certification, such delay shall not be an Event of Default, so long as such statements are provided
to Seller upon their completion and filing with the SEC.
8.2 Seller Financial Information. If requested by Buyer, Seller shall deliver to Buyer
(a) within one hundred twenty (120) days following the end of each fiscal year, a copy of Seller’s
annual report containing unaudited consolidated financial statements for such fiscal year (or
audited consolidated financial statements for such fiscal year if otherwise available) and (b)
within sixty (60) days after the end of each of its first three fiscal quarters of each fiscal year, a
copy of such Seller’s quarterly report containing unaudited consolidated financial statements for
such fiscal quarter. In all cases the statements shall be for the most recent accounting period and
shall be prepared in accordance with Generally Accepted Accounting Principles.
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of any such rights or remedies to reduce Seller’s obligations under the Agreement (Seller
remaining liable for any amounts owing to Buyer after such application), subject to the Buyer’s
obligation to return any surplus proceeds remaining after such obligations are satisfied in full.
(A) Beginning on the Initial Delivery Date, and throughout the Delivery
Term, Buyer will calculate the Mark-to-Market Value according to the formula set forth in
Appendix XXII for the remainder of the Delivery Term.
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(D) Seller shall meet the collateral requirement within three Business
Days of such Notice from Buyer.
(E) The Delivery Term Security shall be no less than zero and no more
than ____dollars ($__.00) [Insert appropriate amount depending on type of facility:
$250,000.00 per MW for combined cycle facilities or $125,000.00 per MW if the Unit is a
peaker] for the Maximum Contract Capacity for all the Units.
For the avoidance of doubt, Buyer has no obligation to post collateral under this
Agreement.
(d) Payment and Transfer of Interest. Buyer shall pay interest on cash held
as Performance Assurance at the Interest Rate and on the Interest Payment Date. Buyer shall
transfer to Seller all accrued interest on the unused cash Performance Assurance to in the form of
cash by wire transfer to the bank account specified under “Wire Transfer” in Appendix XXIX,
Notices.
(e) Return of Delivery Term Security. Buyer shall return the unused portion
of Delivery Term Security, including the payment of any interest due thereon, pursuant to Section
8.4(d) above, to Seller promptly after the following has occurred: (i) the Contract Term has
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ended, or subject to Section 5.2, an Early Termination Date has occurred, as applicable; and (ii)
all payment obligations of the Seller arising under this Agreement, including but not limited to
the Termination Payment, indemnification payments or other damages are paid in full (whether
directly or indirectly such as through set-off or netting).
(a) If Seller has provided a Letter of Credit pursuant to any of the applicable
provisions in this Article VIII, then Seller shall renew or cause the renewal of each outstanding
Letter of Credit on a timely basis in accordance with this Agreement.
(b) In the event the issuer of such Letter of Credit at any time (x) fails to
maintain the requirements of an Eligible LC Bank or Letter of Credit, (y) indicates its intent not
to renew such Letter of Credit, or (z) fails to honor Buyer’s properly documented request to draw
on such Letter of Credit, Seller shall cure such occurrence by complying with either subsections
8.5(b)(i) or (ii) below in an amount equal to the outstanding Letter of Credit, and by completing
the action within five (5) Business Days after the date of Buyer’s Notice to Seller of an
occurrence listed in this subsection (Seller’s compliance with either subsections (i) or (ii) below is
considered the “Cure”):
(c) Notwithstanding the foregoing in Section 8.5(b), if, at any time, the
issuer of such Letter of Credit has a Credit Rating on “credit watch” negative or developing by
S&P, or is on Moody’s “watch list” under review for downgrade or uncertain ratings action
(either a “Watch”), then Buyer may make a demand to Seller by Notice (“LC Notice”) to provide
a substitute Letter of Credit that is issued by an Eligible LC Bank, other than the bank on a Watch
(“Substitute Letter of Credit”). The Parties shall have thirty (30) Business Days from the LC
Notice to negotiate a Substitute Letter of Credit (“Substitute Bank Period”).
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(ii) If the Parties have not agreed to a Substitute Letter of Credit and
Buyer fails to provide a Notice during the Ineligible LC Bank Notice Period above, then Seller
may continue providing the Letter of Credit posted immediately prior to the LC Notice.
(d) In all cases, Seller will bear the costs and expenses of establishing,
renewing, substituting, canceling, increasing, reducing, or otherwise administering the Letter of
Credit.
(b) In all cases, Seller will bear the costs and expenses of establishing, renewing,
substituting, canceling, increasing, reducing, or otherwise administering the Guaranty.
9.1 Cooperation. Each Party shall use reasonable efforts to implement the provisions
of and to administer this Agreement in accordance with the intent of the Parties to minimize all
taxes, so long as neither Party is materially adversely affected by such efforts.
9.2 Governmental Charges. Seller shall pay or cause to be paid all taxes imposed by
any Governmental Authority (“Governmental Charges”) on or with respect to the Products or the
Tolling Services arising before and at the Electrical Delivery Point and with respect to Gas, after
the Gas Delivery Point, including (i) ad valorem taxes, (ii) taxes related to the operation or
maintenance of the Units, the Facility, or the Site, (iii) taxes related to the provision of Tolling
Services or the use or consumption of Gas or other Fuels, and (iv) other taxes attributable to the
Units, land, land rights or interests in land for the Units or the Facility. Buyer shall pay or cause
to be paid all Governmental Charges on or with respect to the Products from the Electrical
Delivery Point and with respect to Gas before and at the Gas Delivery Point. In the event a Party
is required by Law to remit or pay Governmental Charges which are the other Party’s
responsibility hereunder, the Party that is assessed shall provide Notice to the Party that is
responsible for such amounts due (together with supporting documentation), the assessed Party
shall promptly pay such Governmental Charges when due and invoice the responsible Party in
accordance with Article VI and the responsible Party shall reimburse the assessed Party in full in
accordance with Article VI no later than the next Monthly Payment Date, with interest at the
Interest Rate from and including the date on which the assessed Party pays the Governmental
Charges until (but excluding) the date on which the responsible Party reimburses the assessed
Party (cumulatively, the “Governmental Charges Payment”). Nothing shall obligate or cause a
Party to pay or be liable to pay any Governmental Charges from which it is exempt under the
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Law; provided that an exempt Party shall bear the responsibility of proving its exemption as
necessary to avoid the unjust imposition of the tax on the other Party.
Emissions Quantity (metric tons) = (Daily GHG Gas) × 0.05302 metric tons per MMBtu;
“Daily GHG Gas” (MMBtu) shall equal the lesser of (x) Daily Actual
Gas minus Additional Gas, or (y) Daily Qualified Gas, for a given day, by Unit.
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fault of any party other than Buyer or its designated third party account holder, Buyer shall be
deemed to have compensated Seller towards its AB 32 Carbon Dioxide Costs and Buyer shall not
be obligated to further attempt to transfer such Compliance Instruments. Without limiting the
prior sentence, if the failure to accept or confirm the Compliance Instruments is caused solely by
an error or omission of CARB or its agents, the Parties shall cooperate to cause CARB or its
agent to correct the error or omission.
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and Buyer shall no longer be obligated to directly transfer Compliance Instruments pursuant to
this Section 9.3.
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towards its costs actually incurred by Seller and required by and payable to a Governmental
Authority to meet the compliance obligation for the Unit(s) pursuant to the New Carbon Program
(“New Carbon Program Costs”) in accordance with this Section 9.3(b). Buyer shall satisfy its
obligation to compensate Seller towards Seller’s New Carbon Program Costs by providing
compensation in the form and manner specified in subsections 9.3(b)(i) and (ii) below (“New
Carbon Program Cost Compensation”) for the remainder of the Delivery Term and Seller shall
apply the New Carbon Program Cost Compensation towards Seller’s New Carbon Program
Costs.
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or provide any and all documents, information or instruments with respect to the generation of
Energy from the Unit(s) reasonably necessary to permit Buyer to comply with such requirements
or to allow Buyer to manage its obligations pursuant to this Agreement or applicable Law.
(ii) except for receipt of the CPUC Approval, in the case of Buyer,
[for New Facilities: and the Governmental Approvals necessary to install, operate and
maintain the Project, in the case of Seller with a New Facility,] it has all Governmental
Approvals necessary for it to legally perform its obligations under this Agreement;
(iii) it has full power and authority to carry on its business as now
conducted and to enter into, and carry out its obligations under this Agreement, and the execution,
delivery and performance of this Agreement are within its powers, have been duly authorized by
all necessary action and do not violate any of the terms and conditions in its governing
documents, any contracts to which it is a party or any Law, rule, regulation, order or the like
applicable to it;
(v) this Agreement and each other document executed and delivered
in accordance with this Agreement constitutes its legally valid and binding obligation enforceable
against it in accordance with its terms, subject to any Equitable Defenses;
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(x) it has entered into this Agreement in connection with the conduct
of its business and it has the capacity or the ability to make or take delivery of the Product as
provided in this Agreement; and
(xi) it is acting for its own account, has made its own independent
decision to enter into this Agreement and as to whether this Agreement is appropriate or proper
for it based upon its own judgment, is not relying upon the advice or recommendations of the
other Party in so doing, and is capable of assessing the merits of and understanding, and
understands and accepts, the terms, conditions and risks of this Agreement.
(b) General Covenants. Each Party covenants that throughout the Contract
Term:
(c) Covenants of Seller. Seller covenants to and for the benefit of Buyer that
throughout the Contract Term (unless another time period is specified):
(i) it will deliver the Products to Buyer free and clear of all liens,
security interests, claims and encumbrances or any interest therein or thereto by any Person;
(ii) the Unit(s) shall at all times during the Contract Term be free
and clear of all liens, security interests, claims and encumbrances or any interest thereto or therein
by any Person except for purposes of Project financing or as otherwise agreed by Buyer as
evidenced by its written consent;
(iii) it will take no action or permit any Person (other than Buyer) to
take any action that would impair in any way Buyer’s ability to rely on the Units in order to
satisfy its Resource Adequacy Requirement;
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(iv) it will report the emissions output from the Unit(s) to CARB for
each emitting year as required by the Regulation for the Mandatory Reporting of Greenhouse Gas
Emissions (Title 17, California Code of Regulations, Sections 95100 to 95133) or any other
authorized Governmental Authority having jurisdiction;
(viii) it shall operate the Units for the full Delivery Term in
accordance with Appendix II.
(ix) it shall maintain in full force and effect any gas transportation
agreements specified in Appendix V.
10.2 Indemnities.
(a) Indemnity by Seller. Seller shall release, defend, indemnify and hold
harmless Buyer, its directors, officers, agents, attorneys, representatives and Affiliates (“Buyer
Group”) against and from any and all Indemnifiable Losses, which arise out of or relate to or are
in any way connected with (i) the Tolling Services after the Gas Delivery Point and prior to and at
the Electrical Delivery Point; (ii) the Products prior to and at the Electrical Delivery Point or Gas
after the Gas Delivery Point; (iii) Seller’s ownership, development, construction, operation and/or
maintenance of the Units, the Facility or the Site; (iv) Third Party Claims arising from Seller’s
actions or inactions, (v) Third Party Claims arising from Seller’s breach of this Agreement or
other agreements related to the development, construction, ownership, operation or maintenance
of the Facility; (vi) any environmental matters associated with the Facility or the Site, including
the disposal and transportation of Hazardous Substances by or on behalf of the Seller or at the
Seller’s direction or agreement; or (vii) resulting from Seller’s violation of any applicable Law, or
Transmission Provider, NERC or WECC or Reliability Organization requirements; in each case
including any loss, claim, action or suit, for or on account of injury, bodily or otherwise, to, or
death of, persons, or for damage to or destruction or economic loss of property belonging to
Buyer, Seller, or others, excepting only such Indemnifiable Losses, to the extent caused by the
willful misconduct or gross negligence of a member of the Buyer Group.
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(b) Indemnity by Buyer. Buyer shall release, defend, indemnify and hold
harmless Seller, its directors, officers, agents, attorneys, representatives and Affiliates (“Seller
Group”) against and from any and all Indemnifiable Losses, which arise out of or relate to or are
in any way connected with (i) the Products after the Electrical Delivery Point or the Gas before or
at the Gas Delivery Point; (ii) Third Party Claims resulting from Buyer’s actions or inactions; (iii)
Third Party Claims arising from Buyer’s breach of this Agreement; or (iv) resulting from Buyer’s
violation of any applicable Law, or Transmission Provider, NERC or WECC or Reliability
Organization requirements; in each case including any loss, claim, action or suit, for or on
account of injury, bodily or otherwise, to, or death of, persons, or for damage to or destruction or
economic loss of property belonging to Buyer, Seller, or others, excepting only such
Indemnifiable Losses, to the extent caused by the willful misconduct or gross negligence of a
member of the Seller Group. Notwithstanding any other provision of this Agreement, Buyer shall
not indemnify the Seller Group for any actions or inactions of PG&E Transmission; provided
that, subject to the understanding that nothing in this Agreement shall be construed as conferring
on Seller or any member of the Seller Group any right or remedies with respect to PG&E
Transmission, and nothing herein shall impair or limit Seller from exercising at any time any and
all rights and remedies as it may have with respect to matters relating to PG&E Transmission.
(iii) Direct Claim. Any Direct Claim must be asserted by giving the
Indemnitor Notice thereof, stating the nature of such claim in reasonable detail and indicating the
estimated amount, if practicable. The Indemnitor will have a period of sixty (60) calendar days
from receipt of such Notice within which to respond to such Direct Claim. If the Indemnitor does
not respond within such sixty-day period, the Indemnitor will be deemed to have accepted such
Direct Claim. If the Indemnitor rejects such Direct Claim, the Indemnitee will be free to seek
enforcement of its rights to indemnification under this Agreement.
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(d) Defense of Third Party Claims. If, within ten (10) calendar days after
giving a Notice of Claim regarding a Third Party Claim to an Indemnitor pursuant to Section
10.2(c)(ii), an Indemnitee receives Notice from such Indemnitor that the Indemnitor has elected
to assume the defense of such Third Party Claim as provided in the last sentence of Section
10.2(c)(ii), the Indemnitor will not be liable for any legal expenses subsequently incurred by the
Indemnitee in connection with the defense thereof; provided, however, that if the Indemnitor fails
to take reasonable steps necessary to defend diligently such Third Party Claim within ten (10)
calendar days after receiving Notice from the Indemnitee that the Indemnitee believes the
Indemnitor has failed to take such steps, or if the Indemnitor has not undertaken fully to
indemnify the Indemnitee in respect of all Indemnifiable Losses relating to the matter, the
Indemnitee may assume its own defense, and the Indemnitor will be liable for all reasonable costs
or expenses, including attorneys’ fees, paid or incurred in connection therewith. Without the
prior written consent of the Indemnitee, the Indemnitor will not enter into any settlement of any
Third Party Claim which would lead to liability or create any financial or other obligation on the
part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder;
provided, however, that the Indemnitor may accept any settlement without the consent of the
Indemnitee if such settlement provides a full release to the Indemnitee and no requirement that
the Indemnitee acknowledge fault or culpability. If a firm offer is made to settle a Third Party
Claim without leading to liability or the creation of a financial or other obligation on the part of
the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the
Indemnitor desires to accept and agrees to such offer, the Indemnitor will give Notice to the
Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten (10)
calendar days after its receipt of such Notice, the Indemnitee may continue to contest or defend
such Third Party Claim and, in such event, the maximum liability of the Indemnitor to such Third
Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid
or incurred by the Indemnitee up to the date of such Notice.
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(f) Rights and Remedies Are Cumulative. The rights and remedies of a
Party pursuant to this Section 10.2 shall be cumulative and in addition to the rights of the Parties
otherwise provided in this Agreement.
10.3 No Dedication. Nothing in this Agreement shall be construed to create any duty
to, any standard of care with reference to, or any liability to any Person not a Party to this
Agreement. No undertaking by one Party to the other under any provision of this Agreement
shall constitute the dedication of that Party’s system or any portion thereof to the other Party or
the public, nor affect the status of Buyer as an independent public utility corporation or Seller as
an independent individual or entity.
10.4 Assignment.
10.5 Governing Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED,
ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. TO THE
EXTENT ENFORCEABLE AT SUCH TIME, EACH PARTY WAIVES ITS RESPECTIVE
RIGHT TO ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER
OR IN CONNECTION WITH THIS AGREEMENT.
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10.6 General. This Agreement constitutes the entire agreement between the Parties
relating to its subject matter. This Agreement shall be considered for all purposes as prepared
through the joint efforts of the Parties and shall not be construed against one Party or the other as
a result of the preparation, substitution, submission or other event of negotiation, drafting or
execution hereof. No amendment or modification to this Agreement shall be enforceable unless
reduced to a writing signed by all Parties; provided that, Appendix II shall be supplemented from
time to time by Seller as expressly contemplated herein, Appendices III and XIII may be revised
unilaterally by Buyer in its sole discretion and Appendix XVI may be revised by Buyer
unilaterally in accordance with Section 4.3. This Agreement shall not impart any rights
enforceable by any third party (other than a permitted successor or assignee bound to this
Agreement). Waiver by a Party of any default by the other Party shall not be construed as a
waiver of any other default. The headings used herein are for convenience and reference
purposes only. All indemnity rights shall survive the termination or expiration of this Agreement
for twelve (12) months. All provisions relating to limitations of liability shall survive without
limit. The survival of rights and obligations of the Parties with respect to Confidential
Information are governed by Section 10.7. All provisions relating to invoicing, payment,
delivery, settlement of other liabilities incurred pursuant to this Agreement and dispute resolution
shall survive for the period necessary to effectuate the rights of the Party benefited by such
provision except as otherwise specified herein. This Agreement shall be binding on each Party’s
successors and permitted assigns. Absent agreement of the Parties to a proposed modification or
amendment of this Agreement, neither Party shall seek to modify or amend this Agreement
pursuant to Sections 205 and 206 of the Federal Power Act. The standard of review for changes
to any rate, term or condition of this Agreement proposed by a Party (acting unilaterally in
violation of the prior sentence), a non-Party or FERC acting sua sponte shall be the “public
interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Services Corp.,
350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348
(1956) (the “Mobile-Sierra” doctrine).
10.7 Confidentiality.
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10.7(b)(vi) or 10.7(b)(vii) (“Regulatory Disclosures”) each Party shall, to the extent practicable,
use reasonable efforts to: (i) notify the other Party prior to disclosing the Confidential Information
and (ii) prevent or limit such disclosure. After using such reasonable efforts, the Disclosing Party
shall not be: (A) prohibited from complying with a Disclosure Order or making the Regulatory
Disclosures or (B) liable to the other Party for monetary or other damages incurred in connection
with such disclosures of the confidential information.
10.8 Insurance. Throughout the Contract Term, Seller shall, at its sole cost and
expense, procure and maintain the following insurance coverage and be responsible for its
subcontractors maintaining sufficient limits of the appropriate insurance coverage. For the
avoidance of doubt, the obligations of the Seller in this Section 10.8 constitute a material
obligation of the Agreement.
(ii) Employers’ Liability insurance shall not be less than one million
dollars ($1,000,000.00) for injury or death occurring as a result of each accident.
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(ii) The limit shall not be less than ten million dollars
($10,000,000.00) each occurrence for bodily injury, property damage, personal injury and
products/completed operations. Defense costs shall be provided as an additional benefit and not
included within the limits of liability. Coverage limits may be satisfied using an umbrella or
excess liability policy or an Owners Contractors Protective (OPC) policy.
(ii) The limit shall not be less than five million dollars
($5,000,000.00) each accident for bodily injury and property damage.
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(f) Form And Content. All policies or binders with respect to insurance
maintained by Seller shall waive any right of subrogation of the insurers hereunder against
PG&E, its officers, directors, employees, agents and representatives of each of them, and any
right of the insurers to any setoff or counterclaim or any other deduction, whether by attachment
or otherwise, in respect of any liability of any such person insured under such policy.
(a) Records and Audit. Generally Accepted Accounting Principles and SEC
rules require Buyer to evaluate if Buyer must consolidate Seller’s financial information. Seller
shall provide access to financial records and personnel required by Buyer to determine if
consolidated financial reporting is required. If Buyer determines that consolidation is required,
Buyer shall require the following during every calendar quarter for the Contract Term:
(b) Any information provided to Buyer pursuant to this Section 10.9 shall be
considered confidential in accordance with the terms of this Agreement and shall only be
disclosed on an aggregate basis with other entities for which Buyer has power purchase
agreements. Buyer shall use this information only for financial statement purposes and shall
share such information with (i) internal or external parties or (ii) regulatory, administrative or
legal entities or authorities only as necessary in connection with the preparation and audit of
Buyer’s financial statements.
(c) The Parties shall, for five (5) years after creation or such longer period as
may be required by applicable Law, each keep and maintain accurate and detailed records relating
to the Units’ hourly deliveries of Products and Gas consumption and such other information as
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required to support the amounts due and payable as between the Parties pursuant to this
Agreement. Such records shall be made available by the Party holding such records to the other
Party for inspection during normal business hours upon reasonable Notice.
(e) General Audit Right. Each Party has the right, at its sole expense, during
normal working hours, and after reasonable Notice, to examine the records of the other Party to
the extent reasonably necessary to verify the accuracy of any statement, charge, or computation
made pursuant to this Agreement. If such examination reveals any inaccuracy in any statement,
the necessary adjustments shall be made promptly; provided that, if the examining Party raises its
objection more than twelve (12) months after the date of the statement in question, that objection
shall be deemed waived.
The conditions precedent, which are set forth in Sections 11.1, 11.2, and 11.3 below (the
“Conditions Precedent”), must be satisfied or waived in writing by both Parties before the Initial
Delivery Date. If those Conditions Precedent are not satisfied or waived within twenty-four (24)
months of Buyer’s Approval Application filing date, this Agreement shall, at the sole discretion
of Buyer, be null and void.
(a) Buyer shall file this Agreement with the CPUC seeking an order that,
after issuance and the passage of time, would constitute a CPUC Approval (“Approval
Application”). Seller agrees to cooperate with Buyer in preparing and filing the Approval
Application and to actively support that application, as reasonably requested by Buyer.
(b) If the CPUC has not issued any decision on the merits in response to the
Approval Application within three-hundred and sixty-five (365) days of the date on which Buyer
files the Approval Application, then either Party may elect to terminate this Agreement by
providing Notice of termination to the other Party, to be effective upon receipt of such Notice as
provided in Article XIII, provided that the CPUC has not issued a decision on the merits in
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response to the Approval Application prior to the date on which the Notice is received. In the
event the Agreement is terminated pursuant to this Section 11.1(b), Buyer shall, within ten (10)
Business Days of such termination, return to Seller its [Project Development Security for New
Facilities][Pre-Delivery Term Security for Existing Facilities] and the Agreement will
terminate without further liability or obligation of the Parties to one another.
(c) If the CPUC, or an applicable appellate body reviewing the CPUC order
issued in response to the Approval Application, issues an order that with the passage of time
necessary for such order to be deemed final and non-appealable constitutes a CPUC Approval,
without condition or modification, then neither Party nor its Affiliates, directly or in cooperation
with others, shall seek further review of the order.
(d) If the CPUC order issued in response to the Approval Application denies
the relief requested, grants it with conditions or requires modification of the Agreement in a
manner that has a material adverse effect on a Party, then the Party that is adversely affected may
seek judicial review of the decision pursuant to the California Public Utilities Code. In the event
that judicial review is sought pursuant to the prior sentence or by a third party, then each of the
Parties agrees that it will remain bound to this Agreement for the additional period of one year
from the date the petition for judicial review is filed. In the event that a final, non-appealable
order (of the CPUC, on remand, or an appellate body) denies the relief requested in the Approval
Application, conditions its approval, or requires modification of the Agreement in a manner that
has a material adverse effect on a Party, then each Party that is materially adversely affected may
(in its sole discretion) elect to Notify the other Party within ten (10) Business Days of the
issuance of such order that it will accept the terms of this Agreement as so conditioned or
modified; and if each Party that is materially adversely affected delivers such Notice, then the
order shall be deemed to be a CPUC Approval. Absent delivery of such Notice by each
materially adversely affected Party within ten (10) Business Days of such order or receipt of an
order within the one year period, this Agreement shall terminate automatically without further
liability or obligation of the Parties to one another. Within ten (10) Business Days of such
termination, Buyer shall return to Seller its [Project Development Security for New
Facilities][Pre-Delivery Term Security for Existing Facilities].
(e) Buyer shall provide Seller with Notice of the date on which the CPUC
order becomes a CPUC Approval, and within ten (10) Business Days following the CPUC
Approval, Seller shall post the [Project Development Security for New Facilities][Pre-
Delivery Term Security for Existing Facilities] as required pursuant to Section [8.4(a)(i) for
New Facilities][8.4(a)(ii) for Existing Facilities].
(f) If the CPUC has not issued any decision on the merits in response to the
Approval Application within two-hundred and forty (240) days of the date on which Buyer files
the Approval Application, or if a petition for judicial review as described in Section 11.1(d) of the
CPUC’s decision on the merits is filed (before, on or after such date) (“CPUC Delay”), then each
Critical Milestone and the Expected Initial Delivery Date shall be extended day for day for each
day commencing on the date that is two-hundred and forty (240) days after the date on which the
Buyer files the Approval Application and ending on the earlier of (i) the date on which an order
on the merits becomes final and non-appealable, or (ii) 365 days after the start of the CPUC
Delay. The Expected Initial Delivery Date will occur on the first day of the calendar month
following the applicable day-for-day extension due to CPUC Delay.
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Seller shall provide Buyer with any requested documentation to support the achievement
of Critical Milestones within ten (10) Business Days of receipt of such request by Seller. If Seller
misses any Critical Milestone by more than thirty (30) days, except as the result of Force
Majeure, Seller shall submit to Buyer, within ten (10) Business Days of such missed Critical
Milestone completion date, a remedial action plan (“Remedial Action Plan”), which is outlined in
the Monthly Construction Progress Report (Appendix XXVIII) and requires Seller to provide a
detailed description of its proposed course of action to achieve the missed Critical Milestones and
all subsequent Critical Milestones by the Initial Delivery Date; provided, that delivery of any
Remedial Action Plan shall not relieve Seller of its obligation to meet any subsequent Critical
Milestones and the Expected Initial Delivery Date.
(c) At least three months prior to issuance of the notice to proceed by Seller
to its EPC Contractor, Seller shall submit to Buyer in writing a proposed amendment to
Appendix XXVII which shall set forth a detailed schedule of additional construction milestones,
each of which is consistent with the Critical Milestones set forth as of the Execution Date in
Appendix XXVII. If Buyer consents in writing by executing the proposed amendment, such
consent not to be unreasonably withheld or delayed, then each such new milestone shall be a
Critical Milestone and this Agreement shall be so amended. If Buyer does not consent, the
Parties shall resolve the dispute in accordance with Article XII.
(d) Reports. Within five (5) Business Days after the close of each calendar
month between the Execution Date and the Initial Delivery Date, Seller shall provide to Buyer a
Monthly Construction Progress Report addressing each of the Critical Milestones and such other
Milestones as set forth pursuant to the Monthly Construction Progress Report including projected
time to completion, and the Parties agree to regularly scheduled meetings between representatives
of Buyer and Seller to review such monthly reports and discuss Seller’s construction progress.
Buyer shall have the right, during business hours and upon at least twenty-four (24) hours’
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Notice, to inspect the Site and/or on-Site Seller data and information pertaining to the Units and
otherwise inspect or audit to enforce its rights pursuant to this Section 11.2.
11.3 Other Conditions Precedent to the Initial Delivery Date. In addition to the
conditions set forth in Section 11.1:
(a) Seller’s Obligations. Seller shall have provided Buyer with Notice of the
expected occurrence of the Initial Delivery Date no later than thirty days prior to the Initial
Delivery Date, and again immediately prior to the date it occurs.
(iii) At Seller’s expense, Seller shall cause any and all Transmission
Upgrades required to enable the grid to accept delivery of the Maximum Contract Capacity (in
addition to any other output of the Facility) at all times during each month of the Delivery Term,
to be constructed and placed into service, including, to the extent necessary, by funding the
Transmission Upgrades. As required in Sections 3.1(b) and 3.4(c), Seller’s interconnection,
and/or transmission arrangements shall provide for Full Capacity Deliverability Status as of
Initial Delivery Date and throughout the Delivery Term.
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(ix) Seller shall have all necessary systems in place and demonstrated
ability to provide Buyer with invoice settlement related meter data as required in Section 3.7(g).
(x) At least one hundred and eighty (180) days prior to the Initial
Delivery Date, Seller must submit an update to Appendix II (“Operational Limitations”) that is
acceptable to Buyer in its reasonable discretion for use in the Master File. [For Existing
Facilities add this additional requirement: Seller shall provide Buyer a copy of the most
recent Facility Emissions Report filed by Seller with CARB.]
(xi) At least one hundred and twenty (120) days prior to the Initial
Delivery Date, the CAISO shall have approved the Operational Limitations submitted by Seller
for use in an updated Master File to represent the operational characteristics of the Units. If the
CAISO does not approve all changes, the Parties shall work together to provide the CAISO of
any documentation or certification that would enable CAISO’s approval of the Operational
Limitations to be used in an updated Master File for the Units. If the process to obtain CAISO
approval of Master File data causes a delay to the Initial Delivery Date, Seller shall be subject to
Delay Damages and termination pursuant to Section 11.4. If requested by Buyer, Seller shall
provide to Buyer a copy of its existing Master File data related to the Unit’s Operational
Limitations if Buyer is not the current SC for the Units.
(xii) Prior to the Initial Delivery Date, Seller shall have achieved its
CAISO Commercial Operation Date , completed a PMax Test, and received CAISO certification
of any Other Products specified in Appendix II.
(xiii) At least thirty (30) days before the Initial Delivery Date, the
Commercial Operation Date shall have occurred and Seller shall have completed the provisions
of Section 3.5(a) for designating Buyer or Buyer’s Third Party SC, as Seller’s SC.
(xv) The Parties shall have finalized the mutually acceptable Test
Procedures at least thirty (60) days prior to the Initial Delivery Date.
(xvi) Seller shall have provided the correction curves per Section 4.2(d).
(b) Return of Security. Provided that Seller is not in breach of its obligations
hereunder, within ten (10) Business Days following the Initial Delivery Date, Buyer will return
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any undrawn portion of the [Project Development Security for New Facilities][Pre-Delivery
Term Security for Existing Facilities] to Seller, if applicable, unless, with Buyer’s consent,
Seller elects to apply the [Project Development Security for New Facilities][Pre-Delivery
Term Security for Existing Facilities] posted pursuant to Section 8.4(a)(i) or 8.4(a)(ii) toward
the Delivery Term Security posted pursuant to Section 8.4(a)(iii).
(a) Delay Damages. In the event that the Initial Delivery Date occurs after
the Expected Initial Delivery Date, Seller will be required to pay to Buyer liquidated damages in
the amount of three hundred and sixty-five dollars per day ($365.00/day) multiplied by the
Monthly Contract Capacity (measured in MWs) during the Summer Months and seventy-five
dollars per day ($75.00/day) multiplied by the Monthly Contract Capacity (measured in MWs)
during the Non-Summer Months, for each day beginning with the day after the Expected Initial
Delivery Date through and including the date on which the Initial Delivery Date occurs up to a
maximum of [twelve (12) months for New Facilities; three (3) months for Existing Facilities]
(any portion of which, or all, such payments are “Delay Damages”). Delay Damages shall be
separate from and in addition to any Termination Payment, if any, owed by Seller. If Delay
Damages are due, then Buyer shall provide Notice to Seller of the amounts due and Buyer may
draw such amounts due from the [Project Development Security for New Facilities][Pre-
Delivery Term Security for Existing Facilities], provided that if the [Project Development
Security for New Facilities][Pre-Delivery Term Security for Existing Facilities] is not
adequate to compensate Buyer for Delay Damages, Buyer shall invoice Seller for the amount still
owed to Buyer on a monthly basis during the period of the delay.
(b) Termination Upon Delay. The Seller’s failure to achieve the Initial
Delivery Date within [for New Facilities: three hundred and sixty-five (365) days; for Existing
Facilities: three (3) months]after the Expected Initial Delivery Date will constitute an Event of
Default pursuant to Section 5.1(a)(vi) of this Agreement. If such an Event of Default occurs, then
any time prior to the occurrence of the Initial Delivery Date, Buyer may elect to exercise the
remedies that are available upon an Event of Default pursuant to Article V, or in the alternative,
Buyer may extend the end date of the Delivery Term by a period equal to the difference between
the Expected Initial Delivery Date and actual Initial Delivery Date.
11.5 Effect of Force Majeure. Each Critical Milestone (see, Appendix XXVII) and
the Expected Initial Delivery Date shall be extended on a day-for-day basis without the payment
of Delay Damages, not exceeding an aggregate extension of [for New Facilities: three hundred
and sixty-five (365) days; for Existing Facilities: three (3) months], to the extent that such [for
New Facilities: Critical Milestone or] Expected Initial Delivery Date is delayed as a result of an
event of Force Majeure invoked by the Seller in accordance with Section 3.9, provided that the
Initial Delivery Date, if extended, shall be the first day of the calendar month following the end of
the event of Force Majeure and the foregoing extension of the Expected Initial Delivery Date
shall continue until such day.
12.1 Intent of the Parties. Except as provided in the next sentence, the sole procedure
to resolve any claim arising out of or relating to this Agreement or any related agreement is the
dispute resolution procedure set forth in this Article XII. Either Party may seek a preliminary
injunction or other provisional judicial remedy if such action is necessary to prevent irreparable
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harm or preserve the status quo, in which case both Parties nonetheless will continue to pursue
resolution of the dispute by means of this procedure.
(a) The Parties will attempt in good faith to resolve any controversy or claim
arising out of or relating to this Agreement or any related agreements by prompt negotiations
between each Party’s Authorized Representative, or such other person designated in writing as a
representative of the Party (each a “Manager”). Either Manager may request a meeting (in person
or telephonically) to initiate negotiations to be held within ten (10) Business Days of the other
Party’s receipt of such request, at a mutually agreed time and place. If the matter is not resolved
within fifteen (15) Business Days of their first meeting (“Initial Negotiation End Date”), the
Managers shall refer the matter to the designated senior officers of their respective companies
(“Executive(s)”), who shall have authority to settle the dispute. Within five (5) Business Days of
the Initial Negotiation End Date (“Referral Date”), each Party shall provide one another written
Notice confirming the referral and identifying the name and title of the Executive who will
represent the Party.
(b) Within five (5) Business Days of the Referral Date the Executives shall
establish a mutually acceptable location and date, which date shall not be greater than thirty (30)
calendar days from the Referral Date, to meet. After the initial meeting date, the Executives shall
meet as often as they reasonably deem necessary to exchange relevant information and to attempt
to resolve the dispute.
(d) If the matter is not resolved within forty-five (45) calendar days of the
Referral Date, or if the Party receiving the written request to meet, pursuant to subpart (b) above,
refuses or does not meet within the thirty (30) calendar day period specified in subpart (b) above,
either Party may initiate mediation of the controversy or claim according to the terms of the
following Section 12.3.
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12.4 Arbitration. At the request of a Party, the arbitrator shall have the discretion to
order depositions of witnesses to the extent the arbitrator deems such discovery relevant and
appropriate. Depositions shall be limited to a maximum of three per Party and shall be held
within thirty (30) days of the making of a request. Additional depositions may be scheduled only
with the permission of the arbitrator, and for good cause shown. Each deposition shall be limited
to a maximum of six (6) hours duration unless otherwise permitted by the arbitrator for good
cause shown. All objections are reserved for the Arbitration hearing except for objections based
on privilege and proprietary and confidential information. The arbitrator shall also have
discretion to order the Parties to exchange relevant documents. The arbitrator shall also have
discretion to order the Parties to answer interrogatories, upon good cause shown.
(a) Each of the Parties shall submit to the arbitrator, in accordance with a
schedule set by the arbitrator, offers in the form of the award it considers the arbitrator should
make. If the arbitrator requires the Parties to submit more than one such offer, the arbitrator shall
designate a deadline by which time the Parties shall submit their last and best offer. In such
proceedings the arbitrator shall be limited to awarding only one of the two “last and best” offers
submitted, and shall not determine an alternative or compromise remedy.
(c) The arbitrator’s award shall be made within nine (9) months of the filing
of the notice of intention to arbitrate (demand) and the arbitrator shall agree to comply with this
schedule before accepting appointment. However, this time limit may be extended by agreement
of the Parties or by the arbitrator, if necessary. The California Superior Court of the City and
County of San Francisco may enter judgment upon any award rendered by the arbitrator. The
Parties are aware of the decision in Advanced Micro Devices, Inc. v. Intel Corp., 9 Cal. 4th 362
(1994), and, except as modified by this Agreement, intend to limit the power of the arbitrator to
that of a Superior Court judge enforcing California Law. The prevailing Party in this dispute
resolution process is entitled to recover its costs and reasonable attorneys’ fees.
(d) The arbitrator shall have the authority to grant dispositive motions prior
to the commencement of or following the completion of discovery if the arbitrator concludes that
there is no material issue of fact pending before him.
(e) Except as may be required by Law, neither a Party nor an arbitrator may
disclose the existence, content, or results of any Arbitration hereunder without the prior written
consent of both Parties.
13.1 Notices. Whenever this Agreement requires or permits delivery of a “Notice” (or
requires a Party to “Notify”), the Party with such right or obligation shall provide a written
communication in the manner specified below; provided, however, that Notices of Outages or
other intra-day information regarding the Units’ operations or availability are to be provided as
required pursuant to Sections 3.5 and 3.8, and Appendix III; and provided further, that any
scheduling and dispatching shall be done pursuant to the Operating Procedures. Invoices may be
sent by e-mail. A Notice sent by e-mail will be recognized and shall be deemed received on the
Business Day on which such Notice was transmitted if received before 5 p.m. Pacific prevailing
time (and if received after 5 p.m., on the next Business Day) and a Notice by overnight mail or
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courier shall be deemed to have been received two Business Days after it was sent or such earlier
time as is confirmed by the receiving Party unless it confirms a prior verbal communication, in
which case any such Notice shall be deemed received on the day sent. Appendix XXIX contains
the names and addresses to be used for Notices.
SIGNATURES
Agreement Execution
In WITNESS WHEREOF, each Party has caused this Agreement to be duly executed by its
authorized representative as of the dates provided below:
Signature: Signature:
Name: Name:
Title Title
Date: Date:
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APPENDIX I
GENERAL DEFINITIONS
“AB 32” means the Global Warming Solutions Act of 2006 enacted under California Health and
Safety Code 38500 et seq.
“AB 32 Carbon Dioxide Costs” means the costs actually incurred by Seller in meeting Seller’s
Compliance Obligations for the Unit(s) as required by and due to CARB to comply with the Cap-
and-Trade Regulations. AB 32 Carbon Dioxide Costs shall not include taxes, charges, fees or
other costs which stem from the Other Emissions.
“Actual Tested Heat Rate” has the meaning set forth in Section 3.11(b)(viii).
“Additional Gas Payment” has the meaning set forth in Section 3.3(e).
“Additional Test Costs” has the meaning set forth in Section 3.11(e).
“Adjusted Guaranteed Heat Rate” has the meaning set forth in Section 4.2(a)(ii).
“Adjusted Base Load Guaranteed Heat Rate” has the meaning set forth in Section 4.2(b)(v).
“Adjusted Peak Load Guaranteed Heat Rate” has the meaning set forth in Section 4.2(c)(iii).
“Adverse Legal Determination” means (a) an action by a Governmental Authority that renders
the Cap-and-Trade Regulations illegal, unconstitutional or unenforceable, including the issuance
of an order, decision or other legally binding action that enjoins, stays or otherwise restrains the
legal effectiveness and implementation of the Cap-and-Trade Regulations such that Seller does
not have a Compliance Obligation, (b) the issuance of an order, decision or other legally binding
action that enjoins, stays or otherwise restrains the legal ability of CARB to implement the Cap-
and-Trade Regulations or that as a result of such restraint on CARB makes it impossible for
Seller to purchase or transfer Compliance Instruments, other than a sanction or penalty imposed
for the failure to comply with AB 32, or (c) the California state legislature or U.S. Congress
promulgates or enacts a Law that repeals or otherwise amends AB 32 such that Seller is no longer
obligated to comply with the Cap-and-Trade Regulations or CARB is unable to implement or
enforce the Cap-and-Trade Regulations.
“Affiliate” of a Person means any other Person that (a) directly or indirectly controls the specified
Person; (b) is controlled by or is under direct or indirect common control with the specified
Person; or (c) is an officer, director, employee, representative or agent or subsidiary of the
Person. For the purposes of this definition, “control”, when used with respect to any specified
Person, means the power to direct the management or policies of the specified Person, directly or
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indirectly, through one or more intermediaries, whether through the ownership of voting
securities, partnership or limited liability company interests, by contract or otherwise.
“AGC” or “Automatic Generation Control” has the meaning set forth in the CAISO Tariff.
“Allowance Trade Date” means the date corresponding to the date of Scheduled Operations, and
if such date is not a Business Day, then the next Business Day.
“Ancillary Services” means regulation (including load following), spinning reserves, non-
spinning reserves, and replacement reserves associated with the Units (in each case as defined by
the CAISO Tariff), and all other similar products that may be developed by the CAISO and/or
FERC as of the Execution Date or a future date during the Contract Term to maintain reliable
operation of the CAISO grid.
“Annual Compliance Obligation” means the annual compliance obligation described at Section
98555 of the Cap-and-Trade Regulations or any successor provision thereto.
“Annual Failed Start Penalty” has the meaning set forth in Section 4.5.
“Availability Adjustment” or “AA” has the meaning set forth in Section 4.1(c).
“Available Capacity” means the maximum amount of Capacity that is expected to be available for
Scheduled Operations as reasonably determined at the time which may be higher than the
Maximum Contract Capacity.
“Average Monthly Conditions” means, in relation to any month, the ambient conditions
(temperature and humidity for the Site) based on the average of the monthly average temperatures
and corresponding humidity conditions of the 10 years prior to the latest available date in the
current year for such month as provided by the National Climatic Data Center (“NCDC”) at
http://gis.ncdc.noaa.gov/map/viewer/#app=cdo&cfg=cdo&theme=hourly&layers=000000
01&extent=-125.0:30.0:-120.0:45.0&node=gis. The Average Monthly Conditions for the
Facility are specified in Appendix II.
“Base Load” means, when used in relation to a Unit or Facility, that the combustion turbine is
operating on its base load temperature control curve with inlet cooling in service, as applicable to
the ambient temperature conditions, and with zero power augmentation, zero duct firing, and net
of auxiliary loads and station electrical uses at the Facility.
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“Business Day” means any day except Saturday, Sunday, or a Federal Reserve member bank
holiday.
“Buyer” means PG&E in its capacity as a purchaser of Products and Tolling Services and other
merchant functions, as distinct from the function of PG&E as a transmission owner. For
avoidance of doubt, PG&E is subject to regulations requiring the separation of its transmission
and merchant functions pursuant to FERC’s Standards of Conduct requirements as set forth at 18
C.F.R. Part 358. Accordingly, as set forth in Section 3.1(f), the Parties acknowledge that the
Parties have no rights against each other or obligations to each other under this Agreement with
respect to any relationship between the Parties in which PG&E is acting in its capacity as an
owner or provider of electrical interconnection or transmission service or as a Gas pipeline or
local distribution company.
“Buyer’s Performance Test” has the meaning set forth in Section 3.11(e). A Buyer’s Performance
Test shall include both a Capacity and a Heat Rate test.
“CAISO” means the California Independent System Operator Corporation or any successor entity
performing similar functions.
“CAISO Commercial Operation Date” means “Commercial Operation Date” as it is set forth in
the CAISO Tariff.
“CAISO Grid” means the system of transmission lines and associated facilities of the
Participating Transmission Owners that have been placed under the CAISO’s operational control.
“CAISO Interconnection Point” means, for Unit(s) interconnected directly to the CAISO Grid or
to a Participating Transmission Owner, the Electrical Delivery Point, and for Unit(s)
interconnected with a Transmission Provider other than the CAISO or a Participating
Transmission Owner, the point at which the Products from the Unit(s) are delivered to the CAISO
Grid.
“CAISO Tariff” means the CAISO Fifth Replacement FERC Electric Tariff, as it may be
amended, supplemented or replaced (in whole or in part) from time to time.
“Capacity” means the maximum capability of a Unit to generate electric energy measured in
megawatts, after deduction for auxiliary loads and station electrical uses, including any variation
in the form of capacity including installed capacity, locational capacity or similar products.
“Capacity Attributes” means any current or future defined characteristic (including the ability to
generate at a given capacity level, provide Ancillary Services and ramp up or down at a given
rate), certificate, tag, credit, flexibility, or dispatch-ability attribute, whether general in nature or
specific as to the location or any other attribute of the Project, intended to commoditize or
otherwise attribute value to any aspect of the Capacity of the Project to produce any and all
Products, including, but not limited to, any accounting construct so that the Capacity subject to
the Operational Limitations as specified in Appendix II may be counted toward a Resource
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Adequacy Requirement or any other measure by the CPUC, the CAISO, the FERC, or any other
entity invested with the authority under federal or state Law, to require Buyer to procure, or to
procure at Buyer’s expense, Resource Adequacy or other such products.
“Cap-and-Trade Program” has the meaning set forth in the Cap-and Trade Regulations.
“Cap-and-Trade Regulations” means “California Cap on Greenhouse Gas Emissions and Market-
Based Compliance Mechanisms,” (California Code of Regulations, Title 17, Subchapter 10,
Climate Change, Article 5, Sections 95800 – 96023) of as it may be amended, supplemented or
replaced (in part) from time to time.
“CARB” means the California Air Resources Board or successor entities with similar functions.
“Carbon Dioxide Emissions Credit” has the meaning set forth in Section 9.3(a)(iii).
“Carbon Dioxide Emissions Payment” has the meaning set forth in Section 9.3(a)(i)
“CHP Settlement Agreement” means the agreement dated September 17, 2010 and approved by
CPUC Decision 10-12-035 and subsequent related CPUC decisions.
“Cold Scheduled Start-Up” means a Cold Start-Up required for Scheduled Operations following a
Scheduled Shut-Down.
“Commercial Operation Date” the date on which all Units at the Facility have become
Commercially Operable.
“Commercially Operable” with respect to the Facility, is a condition occurring after such time as
Mechanical Completion has occurred, commissioning is complete, the Facility has been shown by
an Initial Performance Test, adjusted to ISO Conditions, to be capable of delivering at least
ninety-nine percent (99%) of the Design Capacity as set forth in Appendix II to the grid on a
sustained basis, and the Facility (including each and every Unit) has been released by the EPC
Contractor to Seller for commercial operations.
“Compliance Instruments” has the meaning set forth in the Cap-and-Trade Regulations referring
to allowances, CARB approved offsets or credits used to fulfill a Compliance Obligation.
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“Compliance Obligation” has the meaning set forth in the Cap-and-Trade Regulations referring to
the quantity of verified reported emissions or assigned emissions of carbon dioxide for which an
entity must submit Compliance Instruments to CARB under the Cap and Trade Program.
“Contract Year” means a period of twelve (12) consecutive months; the first Contract Year shall
commence on the Initial Delivery Date; and each subsequent Contract Year shall commence on
the anniversary of the Initial Delivery Date. In the event of an Early Termination Date, the final
Contract Year may be a period of less than twelve (12) consecutive months, and shall be the
period commencing on the anniversary of the Initial Delivery Date last preceding the Early
Termination Date through and including the Early Termination Date.
“Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other
similar third party transaction costs and expenses reasonably incurred by such Party either in
terminating any arrangement pursuant to which it has hedged its obligations or entering into new
arrangements which replace this Agreement; and all reasonable attorneys’ fees and expenses
incurred by the Non-Defaulting Party in connection with the termination of this Agreement.
“CPUC Approval” means a final and non-appealable order of the CPUC, without conditions or
modifications unacceptable to the Parties, or either of them, which contains the following terms:
(a) approves this Agreement in its entirety and authorizes Buyer to collect all related
payments in rates, subject only to CPUC review of the Buyer’s administration of the Agreement;
(b) a finding that the Capacity procured by Buyer under this Agreement counts
toward Buyer’s CHP procurement obligation under the CHP Settlement Agreement as calculated
by Buyer t; and
(c) a finding that procurement under this Agreement counts toward Buyer’s GHG
emissions reduction target pursuant to the CHP Settlement Agreement by the amount calculated
by Buyer .
CPUC Approval will be deemed to have occurred on the date that a CPUC decision
containing such findings becomes final and non-appealable. [Note: only include the relevant
findings for the Agreement. I.e.., either part (b) or (c) of this definition, or both parts (b) and
(c,) may apply to the Agreement.]
“Credit Rating” means, with respect to any entity, (a) the rating then assigned to such entity’s
unsecured senior long-term debt obligations (not supported by third party credit enhancements),
or (b) if such entity does not have a rating for its unsecured senior long-term debt obligations,
then the rating assigned to such entity as an issuer rating by S&P and/or Moody’s. If the entity is
rated by both S&P and Moody’s and such ratings are not equivalent, the lower of the two ratings
shall determine the Credit Rating. If the entity is rated by either S&P or Moody’s, but not both,
then the available rating shall determine the Credit Rating.
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“Current MIV” is the current monthly intrinsic value of the transaction contemplated in this
Agreement as calculated in accordance with Appendix XXII.
“Daily Actual Gas” has the meaning set forth in Section 3.3(f).
“Daily GHG Gas” has the meaning set forth in Section 9.3(a)(i).
“Daily Imbalance Amount” has the meaning set forth in Section 3.3(f).
“Daily Qualified Gas” has the meaning set forth in Section 3.3(f).
“Day-Ahead Market” has the meaning set forth in the CAISO Tariff.
“Day-Ahead Price” means the LMP specific to a given Unit for a given hour for the Day-Ahead
Market.
“Day-Ahead Schedule” has the meaning set forth in the CAISO Tariff that refers to the quantity
of Energy cleared through the Day-Ahead Market for the Unit(s) that is issued one day prior to
the operating day.
“Delivered Energy” means all Energy produced from a given Unit as measured in MWh at the
CAISO revenue meter of a given Unit based on a power factor of precisely one (1) and net of all
Electrical Losses.
“Delivery Term Security” means the collateral required of Seller, as specified and referred to in
Article VIII.
“Design Capacity” means, for the Facility (including each and every Unit), one hundred percent
(100%) of Base Load [or, if applicable: the Peak Load] that the Facility can be expected to
reliably and safely generate on a sustained basis as of the Execution Date, as measured at the
Electrical Delivery Point, at ISO Conditions, which is set forth in Appendix II. The Design
Capacity includes the maximum use of duct firing, if applicable.
“Direct Claim” means any claim by an Indemnitee on account of an Indemnifiable Loss which
does not result from a Third Party Claim.
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“Dispatch Instruction” has the meaning set forth in the CAISO Tariff that refers to an instruction
by the CAISO for the Unit(s) to increase or decrease from a current operating level during Real-
Time Market or any intra-day operations.
“Early Termination Date” has the meaning set forth in Section 5.2.
“Electric Revenue Meter” means the measurement device(s) used by the interconnecting
Transmission Provider to measure deliveries of any and all Products for purposes of billing.
“Electrical Delivery Point” has the meaning set forth in Section 3.4(a).
“Electrical Interconnection Facilities” means the apparatus required to safely and reliably
interconnect with and deliver the Products at the Maximum Contract Capacity to the Electrical
Delivery Point by means of either the electric distribution system or the CAISO Grid, including
connection, transformation, switching, metering, communications, control, and safety equipment,
such as equipment required to protect (a) the electric systems of the Transmission Provider and
electric distribution provider (or other transmission systems directly or indirectly interconnected
to the electric distribution provider and/or the Transmission Provider) and the electric distribution
provider’s customers from faults occurring at the Units, and (b) the Units from faults occurring on
the electric systems of the electric distribution provider or the Transmission Provider, or on other
directly or indirectly interconnected transmission systems.
“Electrical Losses” means all applicable losses, including, but not limited to, any transmission or
transformation losses between the CAISO revenue meter and the Electrical Delivery Point.
“Eligible LC Bank” means either a U.S. commercial bank, or a foreign bank issuing a Letter of
Credit through its U.S. branch; and in each case the issuing U.S. commercial bank or foreign bank
must be acceptable to Buyer in its sole discretion and such bank must have a Credit Rating of at
least: (a) “A-, with a stable designation” from S&P and “A3, with a stable designation” from
Moody’s, if such bank is rated by both S&P and Moody’s; or (b) “A-, with a stable designation”
from S&P or “A3, with a stable designation” from Moody’s, if such bank is rated by either S&P
or Moody’s, but not both, even if such bank was rated by both S&P and Moody’s as of the date of
issuance of the Letter of Credit but ceases to be rated by either, but not both of those ratings
agencies.
“Energy” means electric energy, measured in MWhs and net of auxiliary loads and station
electrical uses (unless otherwise specified).
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“EPC Contract” means the Seller’s engineering, procurement and construction contract with the
EPC Contractor.
“EPC Contractor” means Seller’s engineering, procurement and construction contractor or such
Person performing those functions.
“Equitable Defenses” means any bankruptcy, insolvency, reorganization and other Laws affecting
creditors’ rights generally, and with regard to equitable remedies, the discretion of the court
before which proceedings to obtain same may be pending.
“Equivalent Operating Hours” shall equal Fired Hours. [Note: Fired Hours should work for
simple-cycle facilities. This may need revision or further discussion with combined-cycle
facilities.]
“Event of Default” means a Seller’s Event of Default and/or a Party’s Event of Default.
“Exceptional Case Agreement” means an agreement between PG&E, as the Seller's LDC or Gas
pipeline, and Seller (or its representative) for Gas LDC service that contains negotiated terms and
conditions approved by the CPUC, such as may be done when the costs of a Gas service
connection, including reinforcement, for a specific customer's project exceeds the revenue
expected to be collected from the customer under the LDC's standard tariff.
“Excused Event” means (a) Buyer’s failure to cause Gas to be available to Seller at the Gas
Delivery Point, (b) the Buyer’s failure to take Energy from and after the Electrical Delivery Point,
and (c) an event of Force Majeure that is claimed by Buyer.
“Excused Failed Starts” means the number of Failed Starts allowed pursuant to Section 4.5 before
Seller starts incurring a Failed Start Penalty for the given Contract Year.
“Excused Hours” means the number of hours equal to (a) the maximum number of Excused
Scheduled Maintenance Outage hours permitted pursuant to Section 3.8(e)(iii) beginning with the
Initial Delivery Date and continuing through the date on which the determination is made less the
number of hours used for Excused Scheduled Maintenance Outages or Force Majeure during such
period; plus (b) at Seller’s option and upon Notice by Seller to Buyer, an additional number of
“borrowed” hours to be designated by Seller that does not exceed a cumulative amount of one
thousand (1000) hours per Force Majeure event, nor, cumulatively, the number of hours for
Excused Scheduled Maintenance Outages available under Section 3.8(e)(iii) remaining, as of the
date of the Notice, in the lesser of the five (5) years following the date of the Notice or the
remaining years of the Contract Term, provided that the number of hours permitted pursuant to
Section 3.8(e)(iii) for Excused Scheduled Maintenance Outages in each of the five (5) calendar
years following the date on which such Notice is received by Buyer shall be reduced by (i) one-
fifth of the total amount of “borrowed” hours as set forth in such Notice or, (ii) if less than five
(5) years are remaining in the Contract Term as of the date of such Notice, then by one (1)
divided by the remaining years in the Contract Term as of the date of the Notice.
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Maintenance Outage that is not an Excused Scheduled Maintenance Outages shall be considered
an Unexcused Scheduled Maintenance Outage.
“Execution Date” means the latest signature date found on the signature page of this Agreement.
“Existing Facility” means an existing Facility that is not proposed to be upgraded or repowered.
“Expected Initial Delivery Date” has the meaning set forth in Section 2.1(c).
“Facility” means the generation facility described in Appendix II, consisting of one or more Units
committed to Buyer and the Electrical Interconnection Facilities and Fuel Handling Facilities
including other Units, that generate, consume or store energy in any form, and any and all other
Units (whether complete or under construction) that are owned, operated or controlled by Seller
or any Affiliate of Seller and located on the same Site or adjacent sites and/or use the same
Electrical Interconnection Facilities and/or Fuel Handling Facilities; provided that for purposes of
Section 3.1(e), a “Facility” shall further include any electrical generating facilities that are
deemed by any Governmental Authority to be part of the same facility or at the same location as
the Units.
“Facility Emissions Report” is the verified, detailed, non-public emission data report filed with
CARB on an annual basis for the Facility as required by the “Regulation for the Mandatory
Reporting of Greenhouse Gas Emissions” (California Code of Regulations, Title 17, Subchapter
10 Climate Change, Article 5, §§ 95100 -95133) as it may be amended, supplemented or replaced
(in part) from time to time.
“Failed Start Penalty” has the meaning set forth in Section 4.5.
“Failed Start Rate” means one thousand dollars ($1000.00) per MW in the first Contract Year,
and thereafter shall be one thousand dollars ($1000.00) per MW increased by two and a half
percent (2.5%) at the start of each successive Contract Year.
“Fired Hour” as applied to a Unit, is an hour or partial hour in which a given Unit was generating
at Minimum Load or higher from the time of Start-Up until Shut-Down is initiated as required
pursuant to Scheduled Operations.
“Final Determination of Invalidation” has the meaning set forth in the Cap-and-Trade
Regulations, Subarticle 12, Section 95985(f).
“Force Majeure” shall mean any event or circumstance to the extent beyond the control of, and
not the result of the negligence of, or caused by, the Party seeking to have its performance
obligation excused thereby, which by the exercise of due diligence such Party could not
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reasonably have been expected to avoid and which by exercise of due diligence it has been unable
to overcome, including but not limited to: (a) acts of God, including but not limited to landslide,
lightning, earthquake, storm, hurricane, flood, drought, tornado, or other natural disasters and
weather related events affecting an entire region which caused failure of performance; (b) fire or
explosions; (c) transportation accidents affecting delivery of equipment only if such accident
occurs prior to the Commercial Operation Date; (d) sabotage, riot, acts of terrorism, war and acts
of public enemy; or (e) restraint by court order or other Governmental Authority. Force Majeure
shall not include (i) a failure of performance of any Third Party, including any party providing
electric transmission service or Gas transportation, except to the extent that such failure was
caused by an event that would otherwise satisfy the definition of a Force Majeure event as
defined above, (ii) failure to timely apply for or obtain Permits, (iii) breakage or malfunction of
equipment, (except to the extent that such failure was caused by an event that would otherwise
satisfy the definition of a Force Majeure event as defined above) or (iv) a strike, work stoppage or
labor dispute limited only to any one or more of Seller, Seller's affiliates, the EPC contractor or
subcontractors thereof or any other Third Party employed by Seller to work on the Project. A
Party shall not be considered to be in default in the performance of its obligations under this
Agreement to the extent that the failure or delay of its performance is due to an event of Force
Majeure; and the non-affected Party shall be excused from its corresponding performance
obligations to the extent due to the affected Party's failure or delay of performance.
Notwithstanding the forgoing, (x) a failure to make payments accrued prior to the event of Force
Majeure when due shall not be excused; and (y) the unavailability of the Capacity of the Units
due to Force Majeure declared by Seller shall be deemed to be unavailable for purposes of
determining Availability and the Availability Adjustment as specified in Section 4.1.
“Force Majeure Development Failure” has the meaning set forth in Section 3.9(d)(ii).
“Forced Outage” means (a) any unplanned reduction or suspension of the electrical output from a
Unit or unavailability of a Product in whole or in part from a Unit in response to a mechanical,
electrical, or hydraulic control system trip or operator-initiated trip in response to an alarm or
equipment malfunction or (b) any other unavailability of a Unit for operation, in whole or in part,
for maintenance or repair that is not a Scheduled Maintenance Outage and not the result of Force
Majeure.
“Forced Outage Compensation” has the meaning set forth in Section 3.5(e).
“Forced Outage Evaluation Period” means the period starting from the beginning of the Forced
Outage event (as specified in SLIC) and continuing (a) through to the end of the first calendar day
of the Forced Outage if the Forced Outage was reported prior to 5:00 a.m. on that day, or (b)
through the end of the second calendar day of the Forced Outage if the Forced Outage was
reported after 5:00 a.m. on the day the Forced Outage began.
“Fuel Handling Facilities” means all equipment and facilities necessary in connection with the
delivery, receipt, handling, processing and disposal of Fuel or Fuel by products, including the Gas
Interconnection Facilities.
“Fuel Manager Fee” has the meaning set forth in Section 3.3(e).
“Full Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff such that
Seller has the ability to deliver at the Electrical Delivery Point all of the Products associated with
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the Unit(s) and the Buyer can receive all the market value of the Products, including Capacity and
Capacity Attributes, associated with the Unit(s). Seller is responsible for any and all costs
associated with the Full Capacity Deliverability Status of the Unit(s).
“Gains” means, with respect to any Party, an amount equal to the present value of the economic
benefit to it, if any (exclusive of Costs), resulting from the termination of this Agreement,
determined in a commercially reasonable manner.
“Gas” means natural gas, which will be any mixture of hydrocarbons or of hydrocarbons and non-
combustible gases in a gaseous state consisting primarily of methane.
“Gas Delivery Point” is the outlet flange of the Gas Meter Set.
[Note for transactors: modify the Gas Index Price if the Facility does not connect to the PG&E
Gas Transmission System.]
“Gas Index Price, High” means the daily index cost of Gas as published by Platt’s Gas Daily (in
the Internet publication currently accessed through www.platts.com), or its successor, in the table
entitled “Daily price survey” under the heading “Common High” for the applicable date of
delivery for PG&E Citygate (or another point as applicable) or in the event of an Index
Disruption Event, the applicable Gas trading point, to be designated.
“Gas Index Price, Low” means the daily index cost of Gas as published by Platt’s Gas Daily (in
the Internet publication currently accessed through www.platts.com), or its successor, in the table
entitled “Daily price survey” under the heading “Common Low” for the applicable date of
delivery for PG&E Citygate (or another point as applicable) or in the event of an Index
Disruption Event, the applicable Gas trading point, to be designated.
“Gas Index Price, Midpoint” means the daily index cost of Gas as published by Platt’s Gas Daily
(in the Internet publication currently accessed through www.platts.com), or its successor, in the
table entitled “Daily price survey” under the heading “Midpoint” for the applicable date of
delivery for PG&E Citygate (or another point as applicable) or in the event of an Index
Disruption Event, the applicable Gas trading point, to be designated.
“Gas Interconnection Facilities” means the apparatus between the Units and the downstream
flange of the Gas Meter Set (owned by Seller) and from the outlet flange of the Gas Meter Set to
the existing transmission or distribution system (owned by the interconnecting pipeline or LDC
but constructed or improved for the purpose of serving the Unit) required to safely and reliably
deliver Gas in volumes and at pressures sufficient to permit the Units to operate at the Maximum
Contract Capacity.
“Gas Meter” means the measurement device used by the interconnecting pipeline or LDC to
measure Gas deliveries for purposes of billing.
“Gas Meter Set” means the Gas meter, service regulator, overpressure protection devices and all
associated piping and fittings of the LDC or interconnecting pipeline.
“Gas True-Up Payment” has the meaning set forth in Section 3.3(f)(iii).
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“Governmental Charges Payment” has the meaning set forth in Section 9.2.
“Greenhouse Gas” or “GHG” means carbon dioxide (CO2), nitrous oxide (N2O), methane (CH4),
hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulfur hexafluoride (SF6) and other
fluorinated greenhouse gases as defined in the Cap-and-Trade Regulations.
“Guaranteed Heat Rate” has the meaning set forth in Section 4.2(a).
“Guaranteed Heat Rate Curve” has the meaning set forth in Section 4.2(a)(ii)and is provided in
Appendix II.
“Guaranteed Heat Rate Correction Curves” has the meaning set forth in Section 4.2(d) and is
provided in Appendix II.
“Guaranteed Heat Rate Point(s)” means the Heat Rate point identified as such and provided in
Appendix II.
“Guaranty” means a guaranty agreement issued by an entity acceptable to Buyer and in a form
acceptable to Buyer in its sole discretion.
“Hazardous Substance” means, collectively, (a) any chemical, material or substance that is listed
or regulated under applicable Laws as a “hazardous” or “toxic” substance or waste, or as a
“contaminant” or “pollutant” or words of similar import, (b) any petroleum or petroleum
products, flammable materials, explosives, radioactive materials, asbestos, urea formaldehyde
foam insulation, and transformers or other equipment that contain polychlorinated biphenyls
("PCBs"), and (c) any other chemical or other material or substance, exposure to which is
prohibited, limited or regulated by any Laws.
“Heat Rate” means the efficiency of a Unit’s ability to convert fuel into power. Heat Rates
applicable to this Agreement are all expressed in terms of Higher Heating Value
“Heat Rate Degradation Factor” or “HDF” has the meaning set forth in Section 4.2(b)(iv).
“High Inventory OFO” means an order issued by the LDC or Gas pipeline to deter excessive Gas
supply on the pipeline compared to actual Gas usage.
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“High Inventory OFO Tolerance Band” is a daily tolerance band specified by the LDC or Gas
pipeline during a High Inventory OFO in which Buyer will use to assess any OFO Charge to
Seller in accordance with Section 3.3(g).
“Higher Heating Value” or “HHV” means the total heat content, expressed in Btus per cubic foot
(Btu/ft3), produced by the complete combustion of 1 cubic foot of Gas at a temperature of 60º
Fahrenheit with the Gas free of water vapor and at a pressure of 14.73 pounds per square inch
absolute with the products of combustion to be cooled to the initial temperature of the Gas and
the water formed by the combustion reaction condensed to the liquid state.
“Holding Account” has the meaning ascribed by the Cap-and-Trade Regulations and is the
account designated by Seller into which all Allowances shall initially be deposited to satisfy the
Compliance Obligation attributable to operation of the Unit(s) to generate Delivered Energy.
“Holding Limit” has the meaning set forth in the Cap-and-Trade Regulations, Subarticle 11,
Section 95920.
“Hot Scheduled Start-Up” means a Hot Start-Up required for Scheduled Operations following a
Scheduled Shut-Down.
“Incremental Duct Fired Guaranteed Heat Rate” or “IDFHR” has the meaning set forth in Section
4.2(a)(ii).
“Indemnifiable Loss” means any and all damages, claims, losses, liabilities, obligations, costs and
expenses, including reasonable legal, accounting and other expenses, and the costs and expenses
of any and all actions, suits, proceedings, demands (by any Person, including any Governmental
Authority), assessments, judgments, settlements and compromises.
“Index Disruption Event” means an event which results in the unavailability of a Platts’ Gas
Daily PG&E Citygate (or another point as applicable) Midpoint, Common High or Common Low
price for the applicable day (exclusive of days which are not customarily reported) including
unavailability resulting from the following: (a) failure of Platts’ Gas Daily to announce or
publish the PG&E Citygate midpoint price for the applicable day, (b) the temporary or permanent
discontinuance or unavailability of the Platts’ Gas Daily PG&E Citygate price index, (c) the
temporary or permanent suspension or discontinuance of Gas trading or reporting of Gas prices at
the location identified as of the Execution Date as the PG&E Citygate, (d) a material change in
the content, composition or constitution of the Gas traded at the location identified as of the
Execution Date as the PG&E Citygate, (e) a substantial reduction in the volume of reported trades
at the PG&E Citygate, whether temporary or permanent, such that the reported price cannot
reasonably be deemed a reliable indicator of the market price of Gas at that location for the
applicable day. In the event of an Index Disruption Event the applicable Gas Index Price will be
determined in accordance with whichever of the following four events is the first to occur: (i) for
a period of no more than two consecutive weeks, the Gas Index Price shall be the average of the
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PG&E Tolling PPA Form; January 2014
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Subject to revision, change or adaptation for CAES
comparable prices reported by Platt’s Gas Daily for Gas delivered at Topock and at Malin, plus
the average of the cost of transportation at as available rates from Topock to PG&E Citygate and
Malin to PG&E Citygate (if available); (ii) in the event of a long-term or permanent disruption to
the Platt’s Gas Daily Index, such other index for daily Gas prices as the Parties agree has been
commonly accepted in the industry as a leading price index for Gas trading in or around
California; (iii) a methodology agreed to by the Parties’ Authorized Representatives; or (iv) by
reference to an index price or methodology based on a reported index price that is determined by
Arbitration conducted in accordance with Article XII to most closely approximate the pricing that
would be expected if the Index Disruption Event had not occurred. [Note for transactors: modify
the referenced index price if the Facility does not connect to the PG&E Gas Transmission
System.]
“Ineligible LC Bank Notice Period” has the meaning set forth in Section 8.5(c)(i).
“Initial Delivery Date” is the date that will occur as specified in Section 2.1(c).
“Initial MIV” is the initial monthly intrinsic value of the transaction contemplated in this
Agreement and calculated in accordance with Appendix XXII.
“Initial Determination of Invalidation” has the meaning set forth in the Cap-and-Trade
Regulations, Subarticle 12, Section 95985(c).
“Initial Negotiation End Date” has the meaning set forth in Section 12.2(a).
“Initial Performance Test” is a test of the Units’ capability to deliver Energy conducted prior to
the Initial Delivery Date in the case of new resources, or in the case of other resources, before or
after the Initial Delivery Date as determined by Buyer, in each case in accordance with the Test
Procedures and Section 3.11. An Initial Performance Test shall include both a Capacity and a
Heat Rate test.
“Instructed Imbalance Energy” or “IIE” shall mean the Unit’s deviation from its market award or
schedule in either the Day-Ahead Market or Real-Time Market, positive or negative, as measured
by Settlement Data from CAISO. Instructed Imbalance Energy shall be calculated as Settlement
Data minus the applicable market award or schedule from the Day-Ahead Market or Real-Time
Market.
“Instructed Operation(s)” means (a) an Operational Order, (b) a mandatory direction of the
Transmission Provider (c) as required pursuant to the Seller’s CAISO Participating Generator
Agreement (explicitly incorporating the CAISO Tariff), or (d) a directive from the CAISO,
Reliability Coordinator, Scheduling Coordinator, or any other entity having similar authority or
performing similar functions during the Delivery Term, to curtail or increase output for reasons
including, but not limited to, (i) Emergencies, (ii) System Emergencies, (iii) reliability needs
including voltage support, or (iv) any warning of an anticipated System Emergency, or warning
of an imminent condition or situation, such as an overgeneration, which jeopardizes the CAISO’s
electric system integrity or the integrity of other systems to which the CAISO is connected.
“Interest Payment Date” means the date of returning unused Performance Assurance held in the
form of cash.
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“Interest Rate” means the rate per annum equal to the “Monthly” Federal Funds Rate (as reset on
a monthly basis based on the latest month for which such rate is available) as reported in Federal
Reserve Bank Publication H.15-519, or its successor publication.
“ISO Conditions” means 59 degrees Fahrenheit and sixty percent (60%) relative humidity and the
associated Site standard barometric pressure at the Site elevation specified in Appendix II.
“JAMS” means JAMS, Inc. or its successor entity, a judicial arbitration and mediation service.
“Law” means any statute, law, treaty, rule, regulation, ordinance, code, Permit, enactment,
injunction, order, writ, decision, authorization, judgment, decree or other legal or regulatory
determination or restriction by a court or Governmental Authority of competent jurisdiction,
including any of the foregoing that are enacted, amended, or issued after the Execution Date, and
which become effective during the Contract Term; or any binding interpretation of the foregoing.
“LDC” means a local distribution company that is the distributor of Gas for consumption at the
Facility.
“Letter of Credit” means an irrevocable, non-transferable standby letter of credit, the form of
which must be substantially as contained in Appendix XXIII to this Agreement; provided, that if
the issuer is a U.S. branch of a foreign commercial bank, Buyer may require changes to such
form; the issuer must be an Eligible LC Bank on the date of Transfer; and the issuing Letter of
Credit amount may not be greater than the Maximum Issuing Amount if the total amount of
collateral posted by the Seller in the form of Letter of Credit exceeds ten million dollars
($10,000,000.00) on the date of Transfer.
“Locational Marginal Price (LMP)” has the meaning set forth in the CAISO Tariff.
“Losses” means, with respect to any Party, an amount equal to the present value of the economic
loss to it, if any (exclusive of Costs), resulting from termination of this Agreement, determined in
a commercially reasonable manner.
“Low Inventory OFO” means an order issued by the LDC or Gas pipeline to deter excessive
actual Gas usage as compared to Gas supply on the pipeline.
“Low Inventory OFO Tolerance Band” is a daily tolerance band specified by the LDC or Gas
pipeline during a Low Inventory OFO in which Buyer will use to assess any OFO Charge to
Seller in accordance with Section 3.3(g).
“Maintenance Outage” means removing the equipment, or any portion thereof, from service
availability, in whole or in part, for inspection and/or general overhaul of one or more major
equipment groups of the type that is (a) necessary to reliably maintain the Units, (b) cannot be
reasonably conducted during the Units’ operations, (c) causes the Available Capacity for the
Units to be reduced to less than one hundred percent (100%) of its Monthly Contract Capacity.
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“Major Maintenance” is defined as any hours or starts based Scheduled Maintenance on the major
equipment and systems as further described and limited in Appendix II.
[For combined cycles, include the following: Major equipment and systems include
but are not limited to: gas turbine and generator, steam turbine and generator, heat
recovery steam generator, and high voltage electrical systems and transformers. Major
Maintenance includes but is not limited to combustion inspections, hot gas path
inspections, major overhaul/inspections, steam path audits, retaining ring
inspect/replacement, high voltage equipment inspections and predictive/preventative
maintenance testing.]
[For combustion turbine facilities, include the following: Major equipment and
systems include but are not limited to: gas turbine/generator, heat recovery steam
generator, and high voltage electrical systems and transformers. Major Maintenance
includes but is not limited to combustion inspections, hot gas path inspections, major
overhaul and inspections, retaining ring inspection and replacement, high voltage
equipment inspections and predictive and preventative maintenance testing.]
[For reciprocating engines, include the following: Major Maintenance includes but is
not limited to piston and liner replacement, crankshaft inspection, bearings, and seals,
high voltage equipment inspections and predictive and preventative maintenance
testing.]
“Mark-to-Market Value” shall equal the difference between the Current MIV and Initial MIV
determined over the remainder of the Delivery Term, but not more than thirty-six (36) months, in
accordance with Appendix XXII and shall never be less than zero.
“Master File” has the meaning set forth in the CAISO Tariff.
“Maximum Contract Capacity” shall mean the greatest Monthly Contract Capacity committed to
Buyer by Seller from the Units for any month during the Delivery Term as described in Appendix
II.
“Maximum Issuing Amount” means the amount of a Letter of Credit to be issued by an Eligible
LC Bank, which cannot exceed the lesser of (a) sixty percent (60%) of the total collateral posted
by Seller in the form of Letter of Credit including the Letter of Credit to be issued or (b) twenty-
five million dollars ($25,000,000.00), without Buyer’s prior written consent.
“Mechanical Completion” means, as to a Unit, when, except for minor items of work that would
not affect the safety and/or performance or operation of the Facility such as painting, landscaping
and so forth, (a) all materials and equipment required to be installed by the EPC Contractor for
the Unit have been installed, calibrated, loop checked and checked for alignment, lubrication,
rotation and hydrostatic and pneumatic pressure integrity; (b) all systems required to be installed
by the EPC Contractor have been installed and tested at significant loads; (c) such systems have
been flushed and cleaned out as necessary; (d) all such equipment and systems have been fully
operated in a safe and prudent manner at nominal ratings and have been installed in a manner that
does not (i) void any subcontractor or vendor equipment, system or other warranties or (ii) violate
any Governmental Approvals; and (e) all systems required to be installed by the EPC Contractor
and necessary for power generation are ready to commence testing and operations, the distributed
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control system for the Facility is operational and the continuous emissions monitoring system has
been installed.
“Meter Service Agreement (MSA)” has the meaning set forth in the CAISO Tariff.
“Minimum Down Time” shall mean the amount of time that a Unit must stay off-line after a
Shut-Down prior to the next Start-Up, as specified in Appendix II (Operational Limitations).
“Minimum Load” means, for a Unit, the minimum operating level at which it can operate at a
continuous sustained level as specified in Appendix II.
“Minimum Run Time” shall mean the amount of time that a Unit must stay on-line after a Start-
Up prior to being Shut-Down as specified in Appendix II (Operational Limitations).
“Monthly Construction Progress Report” means the report similar in form and content attached
hereto as Appendix XXVIII.
“Monthly Contract Capacity” or “MCC” means the maximum amount of Capacity from the Units
that Seller has committed to sell to Buyer during such month. Prior to the Initial Delivery Date,
the Monthly Contract Capacity for the Units shall be equal to the megawatt amount that is
applicable in such month as set forth in Appendix II, which shall be equal to the Design Capacity
of the Units, reasonably adjusted (if necessary due to the technology of the Units) for Average
Monthly Conditions. On and after the Initial Delivery Date, the Monthly Contract Capacity for
the Units shall be established pursuant to Section 3.11.
“Monthly Fixed Payment” or “MFP” has the meaning set forth in Section 4.3(b)(i).
“Monthly Payment Date” has the meaning set forth in Section 6.3.
“Monthly Variable Payment” or “MVP” has the meaning set forth in Section 4.3(b)(ii).
“MRTU” means Market Redesign and Technology Upgrade, as such term is used by the CAISO
to describe new market structures and rules expected to become effective in 2008, or a successor
program.
“New Carbon Program” has the meaning set forth in Section 9.3(b).
“New Carbon Program Costs” has the meaning set forth in Section 9.3(b).
“New Carbon Program Costs Compensation” has the meaning set forth in Section 9.3(b).
“Non-Spinning Reserves” has the meaning set forth in the CAISO Tariff.
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PG&E Tolling PPA Form; January 2014
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“Non-Summer Months” means the calendar months of January, February, March, April, October,
November and December.
“Notice” unless otherwise specified in the Agreement, means a written communication which is
delivered by hand delivery, United States Mail, overnight courier service, facsimile, or electronic
messaging (e-mail), and in the manner required by Section 13.1, as applicable to a given
communication.
“Offset Credits” has the meaning set forth in the Cap-and Trade Regulations.
“OFO Noncompliance Rate” means the per unit charge (in $/MMBtu) specified by the LDC or
Gas pipeline during an OFO that Buyer will use to assess any OFO Charge to Seller in
accordance with Section 3.3(g).
“OFO Tolerance Band” is a daily tolerance band specified by the LDC or pipeline during an OFO
in which Buyer will use to assess any OFO Charge to Seller in accordance with Section 3.3(g).
“Operating Procedures” has the meaning set forth in Section 3.12 and are provided in Appendix
XIII.
“Operational Balancing Agreement” or “OBA” means the terms and conditions for the resolution
of Gas imbalances incurred on a specific Gas transportation system.
“Operational Flow Order” or “OFO” means a mechanism to protect the operational integrity of
the Gas pipeline. A LDC or pipeline may issue and implement an OFO in the event of high or
low pipeline inventory.
“Operational Limitations” of a Unit are the parameters set forth in Appendix II, describing the
physical capabilities of the Unit, including the time required for Start-Up, ramp rate, the
limitation on the number of Scheduled Start-Ups per Contract Year and the minimum operating
limits for the Units.
“Operational Limitations Test Penalty” has the meaning set forth in Section 3.11(g).
“Operational Limitations Tests” has the meaning set forth in Section 3.11(g).
“Operational Order” means a mandate issued by a Governmental Authority which the Seller has
no discretion to ignore or avoid, to offer or provide a Product or to Start-Up, Shut-Down, curtail
or operate a Unit. An Operational Order would include, for example, a mandate issued by the
U.S. Secretary of Energy to offer Capacity or Energy or to operate a Unit during an Emergency.
In contrast, by way of further example, a legal obligation to test a Unit for the purpose of
maintaining its Governmental Approvals is not considered an Operational Order.
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“Other Emissions” means the emissions of carbon monoxide (CO), nitrous oxide (N2O), methane
(CH4), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulfur hexafluoride (SF6), or any
other non-CO2 gases from the operation of the Unit(s).
“Other Products” shall mean, for each Unit, if applicable as set forth in Appendix II: (a) all
Ancillary Services that a Unit is capable of producing; (b) black start capability; (c) rights
associated with Resource Adequacy Requirements; (d) all thermal and/or mechanical energy
produced by the Units [For qualifying cogeneration facilities only, add: exclusive of ____
MMBTU of thermal energy and/or ___ joules of mechanical energy]; (e) flexible ramping
product; and (f) all products or services similar to the foregoing which can be produced by or are
associated with the Capacity or Capacity Attributes of the Unit, as those Products are defined,
during the Delivery Term.
“Other Products Charge” has the meaning set forth in Section 3.5(f).
“Outage” means the partial or full unavailability or inability of the Units to operate at one
hundred percent (100%) of its Monthly Contract Capacity, including any derating or inability to
produce or make available a Product (other than as disclosed in Appendix II as an Operational
Limitation).
“Outage Reporting Protocols” means outage reporting procedures as outlined in Appendix III.
“Participating Generator Agreement (PGA)” has the meaning set forth in the CAISO Tariff.
“Participating Transmission Owner” or “Participating TO” means an entity that (i) owns, operates
and maintains transmission lines and associated facilities and/or has entitlements to use certain
transmission lines and associated facilities and (ii) has transferred to the CAISO operational
control of such facilities and/or entitlements to be made part of the CAISO Grid.
“Party’s Event of Default” has the meaning set forth in Section 5.1(b).
“Peak July Conditions” means the ambient conditions (temperature and humidity for the Site)
based on the average of the monthly maximum peak temperatures and corresponding humidity
conditions of the ten years prior to the current year for the month of July as provided by the
National Climatic Data Center (“NCDC”) at
http://gis.ncdc.noaa.gov/map/viewer/#app=cdo&cfg=cdo&theme=hourly&layers=000000
01&extent=-125.0:30.0:-120.0:45.0&node=gis. Peak July Conditions for the Facility are
specified in Appendix II.
[if applicable: “Peak Load” means the maximum rate of Energy production, net of auxiliary
loads and station electrical uses at a Unit or the Facility, which will include all turbines
operating simultaneously at the maximum rate of duct firing, if applicable. Peak Load for
the Facility and each Unit is specified in Appendix II.]
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PG&E Tolling PPA Form; January 2014
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“Permit” means any waiver, exemption, variance, franchise, permit, authorization, consent,
ruling, certification, license or similar order of or from, or filing or registration with, or notice to,
any Governmental Authority that authorizes, approves, limits or imposes conditions upon a
specified activity.
“Person” means an individual, partnership, joint venture, corporation, limited liability company,
trust, association or unincorporated organization, or any Governmental Authority.
“PG&E Transmission” means PG&E in its capacity as a provider of electric transmission, Gas
transportation or LDC services, including matters related to interconnection for such services.
“PG&E’s Outage Reporting Protocols” means the instructions and procedures to be established
by PG&E from time to time for reporting Outages and Available Capacity of the Unit(s).
PG&E’s Outage Reporting Protocols as in effect as of the Execution Date are attached hereto as
Appendix III and may be revised unilaterally by PG&E from time to time with reasonable
advance Notice to Seller.
“Pre-COD Settlement Amount” has the meaning set forth in Section 5.2(i).
“Pre-Delivery Term Security” is the collateral required of Seller, as specified and referred to in
Article VIII.
“Product” shall mean each and all of Energy, Capacity, Capacity Attributes, and, to the extent
applicable as set forth in Appendix II, each and all of the Other Products, as defined herein, all of
which shall be delivered for Buyer’s exclusive use on a real-time basis net of real-time station
load and auxiliary load pursuant to the terms of this Agreement.
“Project” means the Facility and all rights, obligations and assets associated with ownership and
operation of the Facility.
“Project Development Security” is the collateral required of Seller, as specified and referred to in
Section 8.4.
“Prudent Electrical Practices” means those practices, methods, applicable codes and acts engaged
in or approved by a significant portion of the electric power industry during the relevant time
period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in
light of the facts known at the time a decision is made, that could have been expected to
accomplish a desired result at reasonable cost consistent with good business practices, reliability,
safety and expedition. Prudent Electrical Practices are not intended to be limited to the optimum
practices, methods, or acts to the exclusion of others, but rather to those practices, methods and
acts generally accepted or approved by a significant portion of the electric power industry in the
relevant region, during the relevant time period, as described in the immediately preceding
sentence.
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(b) (Delivered Energy for the Settlement Interval) × (GHR at (Delivered Energy for
the Settlement Interval × number of Settlement Interval in one hour));
provided that Qualified Gas shall be zero during the Settlement Intervals in which the
Unit(s) are ramping from non-operation to Minimum Load or ramping from Minimum Load to
non-operation (as specified in Appendix II), and GHR shall refer to the most recent applicable
Guaranteed Heat Rate curve.
“Quantitative Usage Limitation” has the meaning set forth by the Cap-and-Trade Regulations.
“RA Capacity” means Capacity that is available to Buyer to satisfy its Resource Adequacy
Requirement, or successor Capacity value mechanism administered by the CPUC and/or the
CAISO.
“RA Monthly Compliance Showing” means the earlier of (i) the monthly RAR compliance or
advisory showings (or similar or successor showings) and (ii) monthly compliance or advisory
showings (or similar or successor showings) for other Capacity Attributes, in each case, an LSE is
required to make to the CPUC pursuant to CPUC Decisions, to the CAISO pursuant to the
CAISO Tariff, or to any Governmental Body having jurisdiction for RA.
“Real-Time Desk” means PG&E’s merchant generation desk that supervises the operation of
PG&E’s portfolio within the Real-Time Market. The contact information for the Real-Time Desk
is specified in Appendix III.
“Real-Time Market” means any existing or future intra-day market conducted by the CAISO
occurring after the Day-Ahead Market.
“Real-Time Price” means the LMP specific to a given Unit at a given Settlement Interval within
the Real-Time Market.
“Regulatory Must-Run Generation” has the meaning set forth in the CAISO Tariff.
“Regulatory Must-Take Generation” has the meaning set forth in the CAISO Tariff.
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“Reporting Year” has the meaning set forth in the Cap-and-Trade Regulations.
“RMR” means Reliability Must-Run or similar reliability requirements set forth by the CAISO
Tariff regarding the operations of the Unit(s).
“RMTmax” is the maximum capacity eligible for Regulatory Must-Take Generation scheduling
after qualifying per CAISO Tariff requirements.
“S&P” means Standard and Poor’s Financial Services, LLC (a subsidiary of The McGraw-Hill
Companies, Inc.) or its successor.
“Scheduled Energy” means Energy generated in response to Scheduled Operations and delivered
to Buyer at the Electrical Delivery Point for its account.
“Scheduled Maintenance” means a Maintenance Outage that has been Noticed to Buyer prior to
the CAISO deadline for planned outage submittals, and approved by the CAISO as a planned
outage.
“Scheduled Operations” means operation of a Unit as required to (i) satisfy Buyer’s Schedule
(including Instructed Operations); and/or (ii) perform an a Standard Performance Test, a Buyer’s
Performance Test, or an Operational Limitations Test. Settlement Data shall be used to represent
Scheduled Operations for any settlement related purposes.
“Scheduled Start-Up” means a Start-Up required for Scheduled Operations following a Scheduled
Shut-Down. “Scheduled Start-Up” includes a Hot Scheduled Start-Up, Warm Scheduled Start-
Up or Cold Scheduled Start-Up.
“Scheduling Coordinator” or “SC” has the meaning set forth the CAISO Tariff. Under the terms
of this Agreement, the SC may be Buyer or Buyer’s designated agent (i.e., third-party).
“Seller’s Event of Default” has the meaning set forth in Section 5.1(a).
“Seller’s Guarantor” means the issuer of a Guaranty from the Seller to the Buyer.
“Seller’s Performance Test” has the meaning set forth in Section 3.11(f). A Seller’s Performance
Test shall include both a Capacity and a Heat Rate test.
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Subject to revision, change or adaptation for CAES
“Settlement Data” means settlement data used by CAISO to represent total Energy that is
expected to be generated by Unit for a given period in real-time, and is currently referred to as
total Expected Energy (per CAISO Tariff).
“Settlement Interval” has the meaning set forth in the CAISO Tariff.
“Shut-Down” means the action of causing the Units to cease producing Energy and/or Other
Products.
“Site” means the real property on which the Facility is located, as identified in Appendix II.
“SLIC” means Scheduling and Logging for the ISO of California, or any successor applications
that allow Scheduling Coordinators to notify CAISO of unit availability and Outages.
“Spinning Reserves” has the meaning set forth in the CAISO Tariff.
“Standard Performance Test” has the meaning set forth in Section 3.11.
“Start-Up” means the action of bringing a Unit from non-operation to operation at the Unit’s
Minimum Load, as specified in Appendix II, and the Unit operates at steady state mode for a
minimum of the lesser of one hour or Minimum Run Time (per Appendix II). “Start-Up”
includes a Hot Start-Up, Warm Start-Up or Cold Start-Up.
“Start-Up Rate” means the amount per MW payable by Buyer to Seller for a Successful
Scheduled Start-Up, by type of Scheduled Start-Up, as set forth in Section 4.4.
“Substitute Bank Period” has the meaning set forth in Section 8.5(c).
“Substitute Letter of Credit” has the meaning set forth in Section 8.5(c).
“Successful Scheduled Start-Up” means a Start-Up which meets the requirements of a Successful
Start-Up and a Scheduled Start-Up.
“Successful Start-Up” means that the combustion turbine has completed Start-Up no later than 30
minutes after the time required by Scheduled Operations and operates at steady state mode for a
minimum of the lesser of one hour or Minimum Run Time as defined for a given Unit per
Appendix II.
“Summer Month” means the calendar months of May, June, July, August and September.
“System Emergency” has the meaning set forth in the CAISO Tariff.
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Subject to revision, change or adaptation for CAES
“Test Results Deadline” has the meaning set forth in Section 3.11(b)(vi).
“Third Party” means a Person that is not a member of the Buyer Group or the Seller Group.
“Third Party Claim” means a claim, suit or similar demand by a Third Party.
“Third Party Payments” has the meaning set forth in Section 3.1(d)(v).
“Tolling Services” means the process whereby Buyer makes Gas available to the Units at the Gas
Delivery Point, Seller accepts such Gas and utilizes it to operate its Units to convert the Gas into
Products (as required in accordance with the terms of the Agreement) and the converted Gas is
redelivered to Buyer in the form of Products at the Electrical Delivery Point.
“Transfer” with respect to Letters of Credit means the delivery of the Letter of Credit conforming
to the requirements of this Agreement, by Seller or an Eligible LC Bank to Buyer or delivery of
an executed amendment to such Letter of Credit (extending the term or varying the amount
available to Buyer thereunder if acceptable to Buyer) by Seller or Eligible LC Bank to Buyer.
“Transmission Provider” means the CAISO or such other electric utility or transmission operator
to which the Unit(s) interconnect.
“Triennial Compliance Obligation” has the meaning set forth in the Cap-and-Trade Regulations.
“Unexcused Scheduled Maintenance Outage” has the meaning set forth in Section 3.8(g).
“Uninstructed Deviation” has the meaning set forth in the CAISO Tariff.
“Unit” means a [combustion turbine, duct burner and associated output from a steam
turbine] as more particularly described in Appendix II from which Seller has agreed to provide
Products to Buyer pursuant to this Agreement. [Modify as appropriate to the Facility.]
“Units” means the Units, as more particularly described in Appendix II, and all appurtenant
facilities and equipment.
“Warm Scheduled Start-Up” means a Warm Start-Up required for Scheduled Operations
following a Scheduled Shut-Down.
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PG&E Tolling PPA Form; January 2014
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Subject to revision, change or adaptation for CAES
“WECC” means the Western Electricity Coordinating Council or successor entities with similar
functions.
“Work” means (a) work or operations performed by a Party or on a Party’s behalf; and (b)
materials, parts or equipment furnished in connection with such work or operations; including (i)
warranties or representations made at any time with respect to the fitness, quality, durability,
performance or use of “a Party’s work”; and (ii) the providing of or failure to provide warnings or
instructions.
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PG&E Tolling PPA Form; January 2014
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Subject to revision, change or adaptation for CAES
APPENDIX II
DESCRIPTION OF FACILITY, UNITS AND OPERATIONAL LIMITATIONS
FACILITY DESCRIPTION
Facility name:
Total number of units at the Facility (committed and not committed to Buyer):
Number of Units at the Facility committed to Buyer: ___ (with associated facilities, as described
below)
UNIT(S) DESCRIPTION
Unit name:
Technology type:
Design Capacity: Refer to Design Capacity listed in the table at the end of this Appendix II.
[The assumptions for the Design Capacity should be stated, including items such as: whether
inlet cooling, if applicable, is on/off, the maximum use of duct firing, and for Facilities with
cogeneration, exclude steam for a steam host, etc.]
Interconnection. The Electrical Delivery Point for the Units is described as follows:
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Subject to revision, change or adaptation for CAES
Additional Information:
OPERATIONAL LIMITATIONS
Starts
The terms “Start-Up”, “Cold Start-Up”, “Warm Start-Up”, and “Hot Start-Up” are defined terms
with the meaning set forth below:
“Cold Start-Up” means a Start-Up that occurs ___ hours or more after a Shut-Down.
“Hot Start-Up” means a Start-Up that occurs ___ hours or less after a Shut-Down.
“Warm Start-Up” means a Start-Up that occurs more than ___ hours and less than ___ hours
after a Shut-Down.
[For the purpose of filling out this Appendix, the Start-up Fuel Requirement and Shut-Down
Fuel Requirement shall be the amount of fuel utilized in the act of bringing a Unit from non-
operation to operation at Minimum Load or vice versa. If applicable, provide details of fuel
used for each Unit’s Start-Up and Shut-Down.]
[For the purpose of filling out this Appendix, Start-up Time is the amount of time needed to
bring a Unit from non-operation to operation at its Minimum Load. If applicable, provide
start-up time for each Unit.]
Start-Up Time:
II - 2
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Subject to revision, change or adaptation for CAES
[Describe Start Limitations for each Unit operating independently and for all Units
simultaneously. Include any daily and/or annual start limitations. Insert constraints, if any,
on run hours and a brief description of the reason for such constraint(s). If possible, Seller
shall provide a formula for annual dispatch purposes that provides Buyer more flexibility to
operate the Facility.]
Ramp Rates
[Describe ramp rates for each Unit operating independently and for all Units operating
simultaneously. If Unit ramp rates vary based on Unit loading level, please provide a ramp
rate for each segment within the operational range in which it differs.]
Under Other Products (if applicable and differs from ramp rates listed above):
Minimum Times
[Describe Minimum Times for each Unit operating independently and for all Units operating
simultaneously.]
II - 3
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[Seller must provide CAISO certification (if required) for all Other Products specified
in this section prior to the Initial Delivery Date.]
Other Restrictions:
[Provide a description of any other operational limitations not covered above, including
but not limited to Major Maintenance requirements, and forbidden operating regions]
II - 4
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Subject to revision, change or adaptation for CAES
Guaranteed Heat Rate Curve and Guaranteed Heat Rate Correction Curves
[To be inserted by Seller in accordance with Section 4.2(a) and 4.2(d). For a Facility
with duct firing, there will be two separate curves: one that shows the Guaranteed Heat
Rate up to one hundred percent (100%) of Base Load and another that shows the
Guaranteed Heat Rate from one hundred percent (100%) of Base Load to Peak Load.]
II - 5
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Subject to revision, change or adaptation for CAES
[To be inserted by Seller in accordance with Section 4.2(a) and 4.2(d). Seller shall
provide no later than one hundred and twenty (180) days prior to the Initial Delivery
Date (i) the correction curves for power and Heat Rate to correct for changes in
ambient dry bulb temperature from the ISO Conditions, (ii) the correction curves for
power and Heat Rate to correct for changes in ambient relative humidity from the ISO
Conditions, and (iii) the correction curves for power and Heat Rate to correct for
changes in ambient barometric pressure from ISO Conditions (collectively with the
Guaranteed Heat Rate Curve tables set forth in Appendix II, the “Guaranteed Heat
Rate Correction Curves”), which will be deemed incorporated into Appendix II when
provided. ]
Heat Rate Degradation Factor (“HDF”) = ____ [To be inserted by Seller, and shall be expressed
as a percentage (%).]
II - 6
PG&E Tolling PPA Form; January 2014
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Subject to revision, change or adaptation for CAES
APPENDIX III
PG&E OUTAGE REPORTING PROTOCOLS
Prior to paralleling or after disconnecting from the electric system, ALWAYS follow your
balancing authority rules and notify the applicable Participating Transmission Owner’s (PTO)
local switching center as follows:
• Call the applicable PTO local switching center to advise of the intent to parallel
before any Start-Up.
• Call the applicable PTO local switching center after the unit has been paralleled
and report the parallel time and intended unit output.
• Call the applicable PTO local switching center after any separation and report the
separation time as well as the date and time estimate for return to service.
2. If the website is unavailable, then implement the procedures set forth below:
a. For all email correspondence, enter the following in the email subject
field: Delivery Date Range, Contract Name, Email Purpose (For
example: “dd/mm/yyyy through dd/mm/yyyy XYZ Company Project #2
Daily Available Capacity”).
III - 1
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Subject to revision, change or adaptation for CAES
1. Forced Outages – Seller shall notify PG&E Real-Time Desk orally at (415) 973-
4500 within 10 minutes.
III - 2
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Subject to revision, change or adaptation for CAES
2. After orally notifying PG&E Real-Time Desk of the Forced Outage, Seller shall
also put forth commercially reasonable efforts to notify PG&E settlements via
PG&E’s electronic website, which is located at www.pge.com under “Business
to Business,” or other PG&E approved website. Once directed to the appropriate
page, Seller will be required to enter a username and password, which will be
assigned by PG&E’s bilateral settlements group.
b. Email body:
III - 3
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Subject to revision, change or adaptation for CAES
For an Outage to be deemed an Excused Scheduled Maintenance Outage, Seller must have
received a Notice from Buyer’s Outage Coordinator indicating Buyer’s approval. The approval
Notice from Buyer to Seller will confirm:
1. The requested Outage meets all of the criteria for Excused Scheduled Maintenance
Outages specified in Section 3.8; and
2. The Outage must take place within the approved window of time starting [____] and
ending [____]. Any hours or partial hours outside of the requested and approved Outage
window will not be Excused Hours.
3. Any change made to the approved Excused Scheduled Maintenance Outage outside of the
approved window of time listed above is deemed a new Outage request and is subject to
re-approval from Buyer.
III - 4
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Subject to revision, change or adaptation for CAES
APPENDIX IV
In accordance with the terms of that certain Power Purchase Agreement dated _______
(“Agreement”) by and between ___________(“Buyer”) and ________________ (“Seller”), and
Section 2.1(c) of that Agreement, this letter (“Initial Delivery Date Confirmation Letter”) serves
to document the Parties’ further agreement that the Conditions Precedent to the occurrence of the
Initial Delivery Date have been satisfied or waived in writing by Buyer. All capitalized terms not
defined herein shall have the meaning set forth in the Agreement.
Additionally Seller provides the following FERC Tariff information for reference purposes only:
IN WITNESS WHEREOF, each Party has caused this Initial Delivery Date Confirmation Letter
to be duly executed by its authorized representative as of the date of last signature provided
below:
Signature: Signature:
Name: Name:
Title: Title:
Date: Date:
IV - 1
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Subject to revision, change or adaptation for CAES
APPENDIX V
GAS TRANSPORTATION CONTRACTS
V-1
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Subject to revision, change or adaptation for CAES
Example 1: Unit A was scheduled to run from HE 7 through HE 10 for the day.
In HE 7 (Interval 3-6), the unit had a positive uninstructed deviation of 1 MWh in each interval.
In HE 9 (Interval 1-3), the unit had a negative uninstructed deviation of 5 MWh in each interval.
Seller requested 500MMbtu of Additional Gas for Seller's testing purposes in HE 20 - 24 (not shown).
GHR *
MW btu/KWh Gas Daily Index Price High = $5.00 per MMBtu
48 15,827 Gas Daily Index Price Low = $4.50 per MMBtu
156 10,715 Transportation Cost = $0.50 per MMBtu
186 10,343
192 10,269
Hour Ending Settlement Buyer's Schedule (Buyer's Schedule x 6) GHR at Delivered Energy (Delivered Energy x 6) GHR at Qualified Gas
(HE) Interval (MWh) (MWh) (Buyer's Schedule x 6) (MWh) (MWh) (Delivered Energy x 6) (Mmbtu)
(MMBtu/MWh) (MMBtu/MWh)
7 1 31 186 10.343 31 186 10.343 320.63
7 2 31 186 10.343 31 186 10.343 320.63
7 3 31 186 10.343 32 192 10.269 320.63
7 4 31 186 10.343 32 192 10.269 320.63
7 5 31 186 10.343 32 192 10.269 320.63
7 6 31 186 10.343 32 192 10.269 320.63
8 1 31 186 10.343 31 186 10.343 320.63
8 2 31 186 10.343 31 186 10.343 320.63
8 3 31 186 10.343 31 186 10.343 320.63
8 4 31 186 10.343 31 186 10.343 320.63
8 5 31 186 10.343 31 186 10.343 320.63
8 6 31 186 10.343 31 186 10.343 320.63
9 1 31 186 10.343 26 156 10.715 278.59
9 2 31 186 10.343 26 156 10.715 278.59
9 3 31 186 10.343 26 156 10.715 278.59
9 4 31 186 10.343 31 186 10.343 320.63
9 5 31 186 10.343 31 186 10.343 320.63
9 6 31 186 10.343 31 186 10.343 320.63
10 1 31 186 10.343 31 186 10.343 320.63
10 2 31 186 10.343 31 186 10.343 320.63
10 3 31 186 10.343 31 186 10.343 320.63
10 4 31 186 10.343 31 186 10.343 320.63
10 5 31 186 10.343 31 186 10.343 320.63
10 6 31 186 10.343 31 186 10.343 320.63
* GHR (Guaranteed Heat Rate) table shown for illustrative purposes only. Determination of GHR for Gas True Up purposes should
conform to requirements set forth in Section 3.3(f). Sum of Qualified Gas for all Settlement Intervals (MMBtu): 7,569.06
Start Up Fuel (MMBtu) per Appendix II: 100
Shut Down Fuel (MMBtu) per Appendix II: 0
Daily Qualifed Gas (MMBtu): 7,669.06
Additional Gas (MMBtu): 500
VI - 1
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Subject to revision, change or adaptation for CAES
Daily Imbalance Amount = ( 9,000 MMBtu ) - ( 7,669.06 MMBtu) - ( 500 MMBtu) = 830.94 MMBtu
Since Daily Imbalance Amount is positive, Seller owes Buyer the following for the day:
830.94 MMBtu x ($5.00/MMbtu + $0.50/MMbtu) = $4,570.15
Daily Imbalance Amount = ( 7,300 MMBtu )- ( 7,669.06 MMBtu) - ( 500 MMBtu) = -869.06 MMBtu
Since Daily Imbalance Amount is negative Buyer owes Seller the following for the day:
869.06 MMBtu x ($4.50/Mmbtu) X 0.15 = $586.62
VI - 2
PG&E Tolling PPA Form; January 2014
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Subject to revision, change or adaptation for CAES
OFO Charge= Max [(10,700 MMBtu - ((1+ 0.08 ) x 10,000 MMBtu)), 0] x ($0.20/ MMBtu)
= $ - No Payment
Scenario C:
Daily Actual Gas 11,100 MMBtu
Daily Qualified Gas + Additional Gas 10,000 MMBtu
Low Inventory OFO Tolerance Band 8%
Non-compliance Rate $ 0.20 per MMBtu
OFO Charge= Max [(11,100 MMBtu - ((1+ 0.08 ) x 10,000 MMBtu)), 0] x ($0.20/ MMBtu)
= $ 60.00 Payment from Seller to Buyer
VII - 1
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Example 3: Both High and Low Inventory OFO issued for the day
Scenario A:
Daily Actual Gas 9,400 MMBtu
Daily Qualified Gas + Additional Gas 10,000 MMBtu
High Inventory OFO Tolerance Band 7%
Low Inventory OFO Tolerance Band 7%
Non-compliance Rate $ 0.30 per MMBtu
OFO Charge (High) = Max [(((1- 0.07 ) x 10,000 MMBtu) – 9,400 MMBtu), 0] x ($0.30/ MMBtu)
= $ - No Payment
OFO Charge (Low) = Max [(9,400 MMBtu - ((1+ 0.07 ) x 10,000 MMBtu)), 0] x ($0.30/ MMBtu)
= $ - No Payment
Scenario B:
Daily Actual Gas 9,200 MMBtu
Daily Qualified Gas + Additional Gas 10,000 MMBtu
High Inventory OFO Tolerance Band 7%
Low Inventory OFO Tolerance Band 7%
Non-compliance Rate $ 0.30 per MMBtu
OFO Charge (High) = Max [(((1- 0.07 ) x 10,000 MMBtu) – 9,200 MMBtu), 0] x ($0.30/ MMBtu)
= $ 30.00 Payment from Seller to Buyer
OFO Charge (Low) = Max [(9,200 MMBtu - ((1+ 0.07 ) x 10,000 MMBtu)), 0] x ($0.30/ MMBtu)
= $ - No Payment
Scenario C:
Daily Actual Gas 10,100 MMBtu
Daily Qualified Gas + Additional Gas 10,000 MMBtu
High Inventory OFO Tolerance Band 7%
Low Inventory OFO Tolerance Band 7%
Non-compliance Rate $ 0.30 per MMBtu
OFO Charge (High) = Max [(((1- 0.07 ) x 10,000 MMBtu) – 10,100 MMBtu), 0] x ($0.30/ MMBtu)
= $ - No Payment
OFO Charge (Low) = Max [(10,100 MMBtu - ((1+ 0.07 ) x 10,000 MMBtu)), 0] x ($0.30/ MMBtu)
= $ - No Payment
Scenario D:
Daily Actual Gas 11,000 MMBtu
Daily Qualified Gas + Additional Gas 10,000 MMBtu
High Inventory OFO Tolerance Band 7%
Low Inventory OFO Tolerance Band 7%
Non-compliance Rate $ 0.30 per MMBtu
OFO Charge (High) = Max [(((1- 0.07 ) x 10,000 MMBtu) – 11,000 MMBtu), 0] x ($0.30/ MMBtu)
= $ - No Payment
OFO Charge (Low) = Max [(11,000 MMBtu - ((1+ 0.07 ) x 10,000 MMBtu)), 0] x ($0.30/ MMBtu)
= $ 90.00 Payment from Seller to Buyer
Note:
If the LDC or Gas pipeline operator for the Facility is PG&E, the internet publication to get access to OFO
announcements is at:
http://www.pge.com/pipeline/operations/ofo/ofoarch.shtml
(or successor website)
If the LDC or Gas pipeline operator for the Facility is not PG&E, please refer to the applicable internet
publication or pipeline operator contacts for information on daily OFO announcements.
VII - 2
PG&E Tolling PPA Form; January 2014
10/9/2015 PG&E - Example form of Tolling Agreement for consideration under CAES Protocol
Subject to revision, change or adaptation for CAES
Unit of
Case 1 Case 2 Measure
Scheduled Operations 500 500 MWh
Delivered Energy 499 501 MWh
- Deviation Charges shall be determined on a Settlement Interval basis and based upon the
CAISO Tariff.
- Above example is for illustrative purposes only and does not include all costs, charges, and
penalties that fall under the Deviation Charges calculation.
VIII - 1
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Subject to revision, change or adaptation for CAES
APPENDIX IX
EXAMPLE OF SECTION 3.5(e) FORCED OUTAGE COMPENSATION
- Unit had a partial Forced Outage starting in Hour 3 (Settlement Interval 4) through Hour 4 (Settlement
Interval 3) for 50% of its MCC.
- Unit had a full plant Forced Outage starting in Hour 4 (Settlement Interval 4) through Hour 7
(Settlement Interval 6).
- Forced Outage Evaluation Period is from (Hour 3 Settlement Interval 4) through Hour 8 (Settlement
Interval 6).
- Seller only incurs Forced Outage compensation if RT Price > DA Price for a particular Settlement
Interval.
- Unit had no other Forced Outages in the month.
Real-time Instructed
Day Ahead Day Ahead Real Time Dispatch Imbalance Real Time Price Forced Outage
Settlement Price Schedule Price Instruction Energy minus Day Ahead Compensation
Hour Interval ($/MWh) (MWh) ($/MWh) (MWh) (MWh) Price ($/MWH) ($)
1 1 $50 0 $69 0 0 $19 --
1 2 $50 0 $84 0 0 $34 --
1 3 $50 0 $84 0 0 $34 --
1 4 $50 0 $46 0 0 ($4) --
1 5 $50 0 $80 0 0 $30 --
1 6 $50 0 $62 0 0 $12 --
2 1 $51 20 $46 20 0 ($5) --
2 2 $51 20 $91 20 0 $40 --
2 3 $51 20 $47 20 0 ($4) --
2 4 $51 20 $73 20 0 $22 --
2 5 $51 20 $60 20 0 $9 --
2 6 $51 20 $93 20 0 $42 --
3 1 $55 20 $51 20 0 ($4) --
3 2 $55 20 $83 20 0 $28 --
3 3 $55 20 $100 20 0 $45 --
3 4 $55 20 $89 10 -10 $34 $340
3 5 $55 20 $93 10 -10 $38 $380
3 6 $55 20 $20 10 -10 ($35) $0
4 1 $54 20 $60 10 -10 $6 $60
4 2 $54 20 $35 10 -10 ($19) $0
4 3 $54 20 $82 10 -10 $28 $280
4 4 $54 20 $73 0 -20 $19 $380
4 5 $54 20 $45 0 -20 ($9) $0
4 6 $54 0 $49 0 0 ($5) $0
5 1 $53 0 $75 0 0 $22 $0
5 2 $53 0 $22 0 0 ($31) $0
5 3 $53 0 $13 0 0 ($40) $0
5 4 $53 0 $81 0 0 $28 $0
5 5 $53 0 $92 0 0 $39 $0
5 6 $53 0 $92 0 0 $39 $0
6 1 $49 20 $94 0 -20 $45 $900
6 2 $49 20 $61 0 -20 $12 $240
6 3 $49 20 $60 0 -20 $11 $220
6 4 $49 20 $18 0 -20 ($31) $0
6 5 $49 20 $85 0 -20 $36 $720
6 6 $49 20 $24 0 -20 ($25) $0
7 1 $48 20 $95 0 -20 $47 $940
7 2 $48 20 $26 0 -20 ($22) $0
7 3 $48 20 $60 0 -20 $12 $240
7 4 $48 0 $90 0 0 $42 $0
7 5 $48 0 $96 0 0 $48 $0
7 6 $48 0 $79 0 0 $31 $0
* Settlement Data, as defined in Appendix I, shall be used to calculate Instructed Imbalance Energy.
IX - 1
PG&E Tolling PPA Form; January 2014
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Subject to revision, change or adaptation for CAES
As noted in Sections 3.3(f), 3.7(g), 6.1 and 6.4, Seller must provide ambient data in a format acceptable to Buyer for purposes of the Gas True-up
calculation. An example format acceptable to Buyer is below, provided that the ambient data format specific to the Unit is subject to change. As
noted in Section 3.7(g), Seller should begin coordination with Buyer for the ambient data systems and format at least ninety (90) days prior to the
Initial Delivery Date.
Interface example with all generator units shown on the same rows.
NUMBER OF NUMBER OF
AMBIENT CONTACT CONTACT GENERATING AUX
PERFORMANCE FILE SERIAL NUMBER: 90206006 NAME: John Smith EMAIL: jsmith@aol.com UNITS: 1 to m METERS: 1 to n
Latest changes:
Added Additional Gas column: the gas (in MMBtu) consumed by facility for testing purposes
Added MSG Configuration ID: Multi-Stage Generation Configuration used by the Facility during the time interval; must be entered by MSG Facilities
Modified Facility Gas Flow column: replaced "Flow" by "Consumption"; instead of MCF or lbm per time unit, will use MMBtu.
NOTE: Therm Factor will be retrieved from ABS or GTS systems for a specific month, and inserted into AUDI database manually (in Phase II).
Facility Gas Flow (now in MMBtu) provided by counterparty will be used for Accrual processing only;
the ABS/GTS systems data will be manually inserted into AUDI in daily intervals for each counterparty.
X-1
PG&E Tolling PPA Form; January 2014
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Subject to revision, change or adaptation for CAES
Interface example with all generator units shown on the same rows.
NUMBER OF NUMBER OF
FILE SERIAL CONTACT CONTACT GENERATING AUX
AMBIENT PERFORMANCE NUMBER: 90206006 NAME: John Smith EMAIL: jsmith@aol.com UNITS: 1 to m METERS: 1 to n
Notes:
H - Hot Start
W - Warm
Start
C - Cold Start
0 - Not
Startup
Unit Engine Startups Interval
B - Base Unit
D - Base Unit
with Duct
Burner
0 - Not
Running
Unit Number of Engines
Enter
Scheduled
Operations
Scheduled Operations (MWh)
X-2
PG&E Tolling PPA Form; January 2014
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Subject to revision, change or adaptation for CAES
This document outlines items to be included in the additional Test Procedures related to
Performance Testing pursuant to the Power Purchase Agreement between ______________ and
Pacific Gas and Electric Company for the _____________ Facility with an Execution Date of
_____________ (“the Agreement”). The additional Test Procedures describe test related
activities in sufficient detail for the Seller and Buyer to agree that a test conducted in strict
adherence to the Test Procedures will deliver accurate and acceptable results.
Capitalized terms not otherwise defined herein retain the meaning in the Agreement. In the event
of a conflict between the Agreement and any additional Test Procedures, the Agreement shall
prevail.
The Test Procedures shall be developed and maintained by the Seller and approved by the Buyer.
All revisions to the Test Procedures shall be documented in the table below:
The test and results correction process shall be conducted in accordance with [Select applicable
codes for the technology at the Facility:
For the purposes of this Test Procedure, the Performance Test results will be measured using the
engineering, performance testing, plant operations, and/or equipment and instrument labeling
terminology as used at the Facility. (Insert other terms as applicable)
Delivery Point
Test Objective
[Specify the overall test objective(s), including as applicable, that the performance will be
determined at maximum and/or part-load output capacity, full and/or part-load heat rate, at the
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Unit and/or Facility level, unadjusted measurement and/or ambient adjusted, net and/or gross
output, or as described by any other parameter necessary to accurately reflect the test objective
(e.g. - Unit-adjusted net power output, Unit-adjusted net heat rate, etc.).]
The Seller or its designated representative shall be responsible for the preparation, set-up, and
conduct of the Performance Test, the reduction of test data, and the reporting of Performance Test
results.
The Buyer has the right but not the obligation, to have its own representative and/or a third party
testing specialist witness any or all activities related to the Performance Test.
Specify roles & responsibilities regarding notifications between Seller and Buyer.
Establish the list of notifications required and any notification deadlines as appropriate.
Describe the Facility and/or Unit(s) and all major equipment (e.g., manufacturer and model of
turbine, inlet air cooling, power augmentation, emission control equipment, fuel gas
compression, etc.) in sufficient detail to provide background for the test.
Equipment Configuration: The Facility equipment will be configured as follows; (Describe how
the equipment will be configured for testing).
Isolation: The Facility, Unit or Units shall be properly isolated in order to achieve the test
objectives. (Describe how the tested Unit will be checked for proper unit isolation; electrically,
fuel, auxiliary loads, etc).
Normal Operations: The tested Facility, Unit or Units shall be operated under normal operating
conditions and in compliance with all emissions requirements. (Describe the normal operating
status of major equipment and the conditions under which that status is expected to change
(e.g., the ambient temperature at which inlet air cooling is started)).
Duration: The Performance Test shall be four (4) continuous hours in duration, including a one
(1) hour stability run and six (6) thirty (30) minute data collection runs (Test Periods), unless
otherwise approved by Buyer. Measurement data will be the averaged for the Test Period to
calculate results. The overall test result will be the average of all Test Period results.
Primary Data Measurements include all instrumentation required to calculate corrected test
results, and are listed in Table 1. (Specify instrument ID, description (type, manufacturer and
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model number), measurement units, location (in terms of both process and physical location),
data sampling interval and a statement of whether the instrument is a temporarily installed
high accuracy test device or normal plant instrumentation.)
TABLE 1:
Primary Instrument Description (Type, Measurement Location Sampling
Measurement ID Manufacturer, Units Interval
model)
Net Elec Output
Ambient Dry
Bulb
Ambient
Humidity
Barometric
Pressure
Fuel Vol Flow
Fuel Pressure
Fuel Temp
Other
Secondary Data Measurements include all instrumentation required to properly conduct the test,
but not directly used to calculate corrected test results, and are listed in Table 2. Secondary Data
Measurements are used to determine Unit stability, normal operation, and other test conditions.
(Specify instrument ID, description (type, manufacturer and model number), measurement
units, location (in terms of both process and physical location), data sampling interval and a
statement of whether the instrument is a temporarily installed high accuracy test device or
normal plant instrumentation.)
TABLE 2:
Secondary Instrument Description (Type, Measurement Locati Sampling
Measurement ID Manufacturer, model) Units on Interval
Compressor Inlet
Temp
Turbine
ExhaustTemp
CT Shaft Speed
CEMS Data
Wheel Space Temp
Steam Flow
Steam Pressure
Other
All Primary Data Measurement instrumentation shall have been calibrated within the six (6)
month period prior to the start of testing, unless otherwise specifically agreed to in writing by the
Buyer.
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All Secondary Data Measurement instrumentation shall have been calibrated within the twelve
(12) month period prior to the start of testing, unless otherwise specifically agreed to in writing
by the Buyer.
Seller shall provide to Buyer instrument calibration certification documentation at least two
business days prior to the test day, unless otherwise specifically agreed to in writing by the Buyer.
Describe the process for data acquisition and storage, including device IDs, description (type,
manufacturer and model number), performance parameters, location (in terms of both process
and physical location), data sampling interval and a statement of whether the instrument is a
temporarily installed or normal plant device.
Describe the source of weather data utilized for normal plant operations and the scheduling of
generating output, and how that data will be reconciled with or used in the calculation of test
results.
Describe the fuel gas sampling and analysis procedures, including the number of and timing of
samples taken, location of sample tap, sampling procedure, sample labeling, and fuel gas
analysis.
Uncertainty Analyses
A pre-test uncertainty analysis shall be initially conducted and included in the Test Procedures,
and shall be updated for any subsequent changes to Primary Measurement Data devices or other
elements of the Test Procedures. The analysis shall include the basis for all input data and
assumptions (e.g., sensitivity, systematic uncertainty, spatial uncertainty, measurement standard
deviation values, etc.) in sufficient detail for Buyer to verify the validity of the results.
For each Performance Test, Seller shall calculate both a pre-test and post-test uncertainty analysis
in accordance with standards described in ASME PTC 19.1-2005, unless otherwise mutually
agreed by both Parties. The results of the pre-test and post-test uncertainty analyses shall be
included in the Test Report. All calculations and procedures to determine the value of the test
uncertainties will be set forth in sufficient detail for Buyer to verify the validity of the results.
Uncertainty results shall be used only to confirm that the test is acceptable, not to adjust the test
results.
Conduct of Test
Stability: For the one (1) hour prior to the start of and for the duration of the Performance Test,
each Unit that is generating shall be operating in steady state mode with all Facility equipment in
normal operating service. All non-generating units and plant equipment that affect auxiliary or
station power usage shall be operating normally.
The Facility, Unit or Units shall meet the stability requirements and stability thresholds
established by the applicable ASME Performance Test Code, for the duration of each Test Period.
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If any stability measurement exceeds code requirements, then the Test Period will be deemed
invalid unless otherwise agreed in writing by the parties.
Excursions: In the event of an un-anticipated operating excursion or other event that could
potentially affect Unit operation, data collection, and/or test results, occurring during the conduct
of the test, the Seller and Buyer shall confer and ascertain whether or not the test may continue
with or without modification to the Test Procedures. The decision to continue or discontinue the
test is at Buyers’ sole discretion.
Specify all calculation procedures and equations, and include mathematical examples. Provide
detailed calculations for adjusting the test results to ISO Design conditions using approved
correction curve equations.
For multiple unit Facilities, describe methodology for the Unit allocation of net power output;
e.g. - If all Units are tested concurrently, the net power output for each Unit shall be
determined as an allocation of the Facility net power output based upon the gross electric
output of each Unit measured at its generator terminals in accordance with the approved Test
Procedures.
Describe the methodology for determination of HHV (e.g. - The fuel gas higher heating value
(HHV) shall be calculated as the average of HHV from the fuel gas samples taken during the
corresponding Performance Test).
For multiple unit Facilities, describe methodology for the Unit allocation of heat input (e.g. - If
multiple Units are tested concurrently, the heat input for each Unit shall be determined by
allocating the Facility heat input among the Units on the basis of the fuel gas volumetric flow
to each Unit as measured at the applicable Unit(s) fuel gas flow sub-meters).
Provide equations for all approved correction curves used to adjust test results to the Design
Capacity (which is adjusted to ISO Conditions).
Test Reporting
Immediately following completion of the Performance Test, Seller shall provide to Buyer all raw
test data in electronic file format or copies of manual data sheets.
Following completion of the Performance Test, Seller shall prepare and deliver to Buyer a Test
Report that includes the following contents;
• A narrative of activities associated with the test preparation, pre-test period, test
period, and post-test period, including a description of all abnormal conditions,
excursions, or significant events,
• A statement that the tested plant, unit or units, were operated normally for the
duration of the test, with exceptions noted as appropriate,
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• A statement that the test was conducted in compliance with all applicable ASME
PTCs and the approved Test Procedures, with exceptions noted as appropriate,
• All calculations from raw data to final results, including either detailed calculation
sheets showing raw data and all calculated values (particularly intermediate
calculated values) to six significant digits or electronic spreadsheets with active links
between data and results.
Appendices
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Guarantee @ Test @
600.0 620.0 605.0 600.0 595.0 590.0 585.0
ISO ISO
If Test is less than 99% of Guarantee, then MCC is adjusted downward by the % decrease from Guarantee.
If Test is between 99% and 100% of Guarantee, there is no adjustment to MCC.
If Test is more than 100% of Guarantee, then MCC is adjusted upward by the % increase from Guarantee, but
capped at 101%.
Tested and Applied % will be calculated to two decimal place precision; resulting adjusted MCC values will be
rounded to one decimal place (1/10th MW).
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APPENDIX XIII
OPERATING PROCEDURES
[Pursuant to Section 3.12, the Operating Procedures shall be developed and added as
Appendix XIII prior to the Initial Delivery Date.]
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2. Unit had a Force Majeure event where the Unit had a derate of 300MW (50%) from 11/12 0700 through 11/12 0830. MAINTHRS = 0.75 (1.5 hours x 50%)
3. Unit had a Forced Outage from 11/17 0245 through 11/30 0400 where the Unit had a derate of 60MW (10%). UNAVAILHRS = 31.32 (313.25 hours x 10%)
Seller has not exceeded the number of Excused Hours or the number of allowed Excused Scheduled Maintenance Hours for the year.
Monthly Totals
MAINTHRS = 217.25
UNAVAILHRS = 31.32
UNAVAILPRODHRS = 0.00
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Example 2:
1. Unit had an extension of an Excused Scheduled Maintenance Outage from 11/20 0300 to 11/20 0345 where it was 100% out. UNAVAILHRS = 0.75 (0.75 hours x 100%)
2. Unit had a full plant Unexcused Scheduled Maintenance Outage from 11/02 0500 to 11/03 0745. UNAVAILHRS = 26.75 (26.75 hours x 100%)
3. Unit had a 150MW (25%) derate that was an Excused Scheduled Maintenance Outage from 11/25 1700 through 11/26 1815. MAINTHRS = 6.31 (25.25 hours x 25%)
Monthly Totals
MAINTHRS = 6.31
UNAVAILHRS = 27.50
UNAVAILPRODHRS = 0.00
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Example 3:
1. Unit had a partial Forced Outage that derated the capacity 60MW (10% of MCC) which took place 11/15 0300 through 11/30 2200. UNAVAILHRS = 37.90 (379 hours x 10%)
2. During this same period of the Forced Outage, the Unit was also not able to provide 300MW of Reg Up service (50% of MCC). Since
10% of MCC will already be counted as unavailable for Energy, only 240MW (40%) will be counted as unavailable for Reg Up at only 20%
penalty. UNAVAILPRODHRS = 30.32 (379 hours x 40% x 20%)
3. Unit had a Force Majeure event from 11/06 0700 through 11/07 1600 where 100% of unit was out. Seller has already surpassed it
allowed Excused Hours for the Contract Year. UNAVAILHRS = 33.00 (33 hours x 100%)
4. Unit had lost its ability to provide Non-Spin (100% of MCC) due to issues with maintaining certification for the period of 11/1 0200
to 11/3 2200. UNAVAILPRODHRS = 13.60 (140 hours x 20%)
Monthly Totals
MAINTHRS = 0.00
UNAVAILHRS = 70.90
UNAVAILPRODHRS = 43.92
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APPENDIX XV
Guaranteed Heat
% Base Rate Points
Unit output (MW)* Load** (btu/kWh)* fuel (mmbtu/hr)
400.0 100% 7000 2800
300.0 75% 7200 2160
200.0 50% 7600 1520
175.0 44% 7731 1353
* Unit output and Guaranteed Heat Rate Point consistent with table provided in App. II
** % Load = Ratio of Unit ouput / Unit Capacity
2
Unit output
HRUnit 1600 3600 Unit output 9000
output DesignCapa city
DesignCapa city
incremental fuel
incremental output between 100% of
(MW) from 100% of Unit output Base Load and fuel at 100% of Base Guaranteed Heat
Base Load to Peak (MW) at Peak Load Load + incremental fuel Rate Point at Peak
Load Peak Load (mmbtu/hr) (mmbtu/hr) Load (btu/kWh)
100.0 500.0 1200 4000 8000
Ci = 402.0 MW (Assumed)
Cb = 395.0 MW (Assumed)
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4.2(b)(iii) Initial Base Load Guaranteed Heat Rates (HRi), after a Performance Test
% Base
Unit Output (MW) Load* HRi (btu/kWh) Fuel (mmbtu/hr)
395.0 100% 7000 2765
296.3 75% 7200 2133
197.5 50% 7600 1501
172.8 44% 7731 1336
* Ratio of Unit ouput / Unit Capacity = % Load
4.2(b)(v) Capacity Degradation Factor (CDF), Heat Rate Adjustment (HRA), and Adjusted Guaranteed Base Load
Heat Rates (HRc)
1 + HRA = 1.01010
% Base
Unit Output (MW) Load* HRc (btu/kWh) Fuel (mmbtu/hr)
395.0 100% 7071 2793
296.3 75% 7273 2155
197.5 50% 7677 1516
172.8 44% 7809 1350
Adjusted Guaranteed
Incremental Heat Rate Points (from
Fuel between 100% of Base Load to
Cb and Unit Fuel at Cb + Peak Load), after a
Output Incremental Fuel Performance Test
Unit Output (MW) (mmbtu/hr) (mmbtu/hr) (btu/kWh)
495.0 1200.0 3993 8067
470.0 900.0 3693 7857
445.0 600.0 3393 7625
420.0 300.0 3093 7364
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APPENDIX XVI
Monthly Allocation
Month
Factor
January 8%
February 5%
March 4%
April 4%
May 4%
June 10%
July 15%
August 15%
September 12%
October 7%
November 7%
December 9%
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MCC
Month (MW) MAF AA MFP
January 612.8 8% 100.00% $7,353,600.00
February 607.9 5% 100.00% $4,559,250.00
March 607.9 4% 100.00% $3,647,400.00
April 600.7 4% 100.00% $3,604,200.00
May 595.8 4% 100.00% $3,574,800.00
June 589.2 10% 100.00% $8,838,000.00
July 585.7 15% 102.00% $13,441,815.00
August 585.7 15% 100.00% $13,178,250.00
September 589.1 12% 100.00% $10,603,800.00
October 594.1 7% 100.00% $6,238,050.00
November 605.1 7% 96.76% $6,147,694.98
December 612.8 9% 100.00% $8,272,800.00
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APPENDIX XVIII
For illustrative purposes, there are only five hours in the month.
Number of Settlement Interval in an hour = 6
Hour Settlement Delivered Energy Buyer's Schedule Min (Delivered Energy, Buyer's Schedule) VOMR VOM payment for each
Interval [MWh] [MWh] [MWh] Settlement Interval
1 1 0 0 0 $5.00 $0
1 2 0 0 0 $5.00 $0
1 3 0 0 0 $5.00 $0
1 4 0 80 0 $5.00 $0
1 5 82 80 80 $5.00 $400
1 6 82 80 80 $5.00 $400
2 1 82 80 80 $5.00 $400
2 2 82 80 80 $5.00 $400
2 3 82 80 80 $5.00 $400
2 4 82 80 80 $5.00 $400
2 5 89 90 89 $5.00 $445
2 6 89 90 89 $5.00 $445
3 1 89 90 89 $5.00 $445
3 2 89 90 89 $5.00 $445
3 3 89 90 89 $5.00 $445
3 4 89 90 89 $5.00 $445
3 5 91 92 91 $5.00 $455
3 6 91 92 91 $5.00 $455
4 1 91 92 91 $5.00 $455
4 2 91 92 91 $5.00 $455
4 3 91 92 91 $5.00 $455
4 4 91 92 91 $5.00 $455
4 5 91 92 91 $5.00 $455
4 6 91 92 91 $5.00 $455
5 1 80 80 80 $5.00 $400
5 2 80 80 80 $5.00 $400
5 3 80 80 80 $5.00 $400
5 4 80 80 80 $5.00 $400
5 5 80 80 80 $5.00 $400
5 6 80 80 80 $5.00 $400
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APPENDIX XIX
For illustrative purposes, the Unit(s) were only scheduled to be online for one day in the month.
The Facility includes 3 units each with a minimum Load of 50MW and a maximum capacity of 100MW.
Based on
Total metered Fired Hours: 41.5
Min (Metered Fired
Hours, Scheduled Fired
Payment Calculation: Hours) on an hourly basis.
Fired Hour Charge = $100 / Fired Hour / unit (illustrative)
Total Fired Hours Payment = 38.5 Fired Hours x ($100 / hour)
$ 3,850.00 (Buyer to Seller)
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APPENDIX XX
Note: Although there were three Hot Scheduled Start-Ups in January, only two of the Scheduled Start-Ups met the
qualifications of a Successful Scheduled Start-up. Hence, Buyer will only pay Seller the Start-Up rate for the two Successful
Hot Scheduled Start-ups.
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For this example, the number of Excused Failed Starts allowed is 2 for the first Contract Year.
There is no Failed Start Penalty incurred until the month of April.
Total Failed Start Penalty is $981,250 for the first Contract Year, payable in 12 month increments of $81,770.83 per month in the following year.
If there remains less than 12 months in the Contract Term, then Failed Start Penalty shall be payable over the number of months remaining in Contract
Term.
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APPENDIX XXII
Formula Definitions:
t0 – Effective Date
Ppeak(i, t) - price of monthly forward NP-15 defined peak power, for month i as observed at the
moment of time t measured in $/MWh
Poff-peak(i, t) - price of monthly forward NP-15 defined off-peak power, for month i as observed
at the moment of time t measured in $/MWh
Pgas(i, t) - price of monthly forward Gas, for month i as observed at the moment of time t
measured in $/MMBtu at the appropriate Gas trading hub.
GHG(i,t) – GHG Price, in $/metric ton for year of current month i as observed at the moment of
time t.
VOMR(i), - Variable O&M Rate (measured in $/MWh) for year of current month set forth in the
Agreement for month i and shall include, if applicable, the Fired Hour Charge (FHC) adjusted to
a $/MWh basis.
HR – the Guaranteed Heat Rate Point at 100% of Base Load at ISO Conditions.
Mark-to-Market Value = max[0, Sum of each month (Change in Value(i))] individually over
[insert lesser of number of remaining months of Delivery Term or thirty-six (36) months]
Initial MIV will be calculated once at t0 for the expected delivery life of the Agreement.
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APPENDIX XXIII
Beneficiary: Pacific Gas and Electric Company Applicant: [Insert name and address of
Applicant]
77 Beale Street, Mail Code B28L
San Francisco, CA 94105
Attention: Credit Risk Management
By order of [insert name of Applicant] (“Applicant”), we hereby issue in favor of Pacific Gas
and Electric Company (the “Beneficiary”) our irrevocable standby letter of credit No. [insert
number of letter of credit] (“Letter of Credit”), for the account of Applicant, for drawings up to
but not to exceed the aggregate sum of U.S. $ [insert amount in figures followed by (amount in
words)] (“Letter of Credit Amount”). This Letter of Credit is available with [insert name of
issuing bank, and the city and state in which it is located] by sight payment, at our offices
located at the address stated below, effective immediately, and it will expire at our close of
business on [insert expiry date] (the “Expiry Date”).
Funds under this Letter of Credit are available to the Beneficiary against presentation of the
following documents:
1. Beneficiary’s signed and dated sight draft in the form of Exhibit A hereto, referencing
this Letter of Credit No. [insert number] and stating the amount of the demand; and
B. “Letter of Credit No. [insert number] will expire in thirty (30) days or less and
[insert name of Seller under the Agreement] has not provided replacement
security acceptable to Beneficiary.
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Special Conditions:
1. Partial and multiple drawings under this Letter of Credit are allowed;
2. All banking charges associated with this Letter of Credit are for the account of the
Applicant;
3. This Letter of Credit is not transferable; and
4. The Expiry Date of this Letter of Credit shall be automatically extended without a written
amendment hereto for a period of one (1) year and on each successive Expiry Date,
unless at least sixty (60) days before the then current Expiry Date, we notify you by
registered mail or courier that we elect not to extend the Expiry Date of this Letter of
Credit for such additional period.
We engage with you that drafts drawn under and in compliance with the terms of this Letter of
Credit will be duly honored upon presentation, on or before the Expiry Date (or after the Expiry
Date as provided below), at our offices at [insert issuing bank’s address for drawings].
All demands for payment shall be made by presentation of originals or copies of documents; or
by facsimile transmission of documents to [insert fax number], Attention: [insert name of
issuing bank’s receiving department], with originals or copies of documents to follow by
overnight mail. If presentation is made by facsimile transmission, you may contact us at [insert
phone number] to confirm our receipt of the transmission. Your failure to seek such a telephone
confirmation does not affect our obligation to honor such a presentation.
Our payments against complying presentations under this Letter of Credit will be made no later
than on the sixth (6th) banking day following a complying presentation.
Except as stated herein, this Letter of Credit is not subject to any condition or qualification. It is
our individual obligation, which is not contingent upon reimbursement and is not affected by any
agreement, document, or instrument between us and the Applicant or between the Beneficiary
and the Applicant or any other party.
Except as otherwise specifically stated herein, this Letter of Credit is subject to and governed by
the Uniform Customs and Practice for Documentary Credits, 2007 Revision, International
Chamber of Commerce (ICC) Publication No. 600 (the “UCP 600”); provided that, if this Letter
of Credit expires during an interruption of our business as described in Article 36 of the UCP 600,
we will honor drafts presented in compliance with this Letter of Credit within thirty (30) days
after the resumption of our business and effect payment accordingly.
The law of the State of New York shall apply to any matters not covered by the UCP 600.
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For telephone assistance regarding this Letter of Credit, please contact us at [insert number and
any other necessary details].
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TO
[INSERT NAME AND ADDRESS OF PAYING BANK]
AT SIGHT OF THIS DEMAND PAY TO THE ORDER OF PACIFIC GAS AND ELECTRIC
COMPANY THE AMOUNT OF U.S.$________(______________ U.S. DOLLARS)
DRAWER
BY:
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APPENDIX XXIV
Sat 01/05/2013 Mon 01/07/2013 Sat 1/5/2013 and Sun 1/6/2013 are not 33,530 1,778 $16.00 $28,448.00
Business Days. Next Business Day is
Sun 01/06/2013 Mon 01/07/2013 Mon 1/7/2013. 35,425 1,878 $16.00 $30,048.00
Sat 01/12/2013 Mon 01/14/2013 Sat 1/12/2013 and Sun 1/13/2013 are not 68,723 3,644 $17.75 $64,681.00
Business Days. Next Business Day is
Sun 01/13/2013 Mon 01/14/2013 Mon 1/14/2013. 45,876 2,432 $17.75 $43,168.00
Sat 01/26/2013 Mon 01/28/2013 Sat 1/26/2013 and Sun 1/27/2013 are not 46,360 2,458 $18.00 $44,244.00
Business Days. Next Business Day is
Sun 01/27/2013 Mon 01/28/2013 Mon 1/28/2013. 45,838 2,430 $18.00 $43,740.00
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APPENDIX XXV
FORM OF LETTER OF CONCURRENCE
[Date]
[Name]
[Position]
[Company Name]
[Address]
This letter sets forth the understanding of the degree of control exercised by Pacific Gas
and Electric Company (“PG&E”) and [Company Name] with respect to [Unit Name] (the
“Facility”) for the purposes of facilitating compliance with the requirements of the Federal
Energy Regulatory Commission’s (“Commission”) Order No. 697.1 Specifically, Order No. 697
requires that sellers filing an application for market-based rates, an updated market power
analysis, or a required change in status report with regard to generation specify the party or
parties they believe have control of the generation facility and extent to which each party holds
control.2 The Commission further requires that “a seller making such an affirmative statement
seek a ‘letter of concurrence’ from other affected parties identifying the degree to which each
party controls a facility and submit these letters with its filing.”3
PG&E and [Company Name] have executed a tolling agreement (the “Agreement”) with
regard to the Facility. The Facility is a [XX] MW [description] facility located in [County, State].
Pursuant to the Agreement, [Company Name] does not intend to transfer “ownership or control of
generation capacity” from [Company Name] to PG&E as the term “ownership or control of
generation capacity” is used in 18 CFR § 35.42.
If you concur with the statements made in this letter, please countersign the letter and
send a copy to me.
Best regards,
_________________
[Author]
1
Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by
Public Utilities, Order No. 697 at P 186-187, FERC Stats. & Regs. ¶ 31,252, clarified,
121 FERC ¶ 61,260 (2007), order on reh’g, Order No. 697-A, FERC Stats. & Regs. ¶
31,268 (2008), clarified, 124 FERC ¶ 61,055 (2008), order on reh’g, Order No. 697-B,
FERC Stats. & Regs. ¶ 31,285 (2008), order on reh’g, Order No. 697-C, FERC Stats. &
Regs. ¶ 31,291 (2009), order on reh’g, Order No. 697-D, FERC Stats. & Regs. ¶ 31,305
(2010).
2
Order No. 697 at P 186.
3
Order No. 697 at P 187.
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[Position]
Pacific Gas and Electric Company
Concurring Statement
On behalf of [Company Name], I am authorized to countersign this letter in concurrence with its
content.
By: _______________
[Name]
[Company Position]
[Company Name]
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This CONSENT AND AGREEMENT (“Consent and Agreement”) is entered into as of [_______
__, 2___], between PACIFIC GAS AND ELECTRIC COMPANY (“PG&E”), and
[_________________] , as collateral agent1 (in such capacity, “Financing Provider”), for the
benefit of various financial institutions (collectively, the “Secured Parties”) providing financing
to [_______] (“Seller”). PG&E, Seller, and the Financing Provider shall each individually be
referred to a “Party” and collectively as the “Parties”.
Recitals
B. The Secured Parties have provided, or have agreed to provide, to Seller financing
(including a financing lease) pursuant to one or more agreements (the “Financing Documents”),
and require that Financing Provider be provided certain rights with respect to the “Assigned
Agreement” and the “Assigned Agreement Accounts,” each as defined below, in connection with
such financing.
Agreement
1. Definitions. Any capitalized term used but not defined herein shall have the meaning
specified for such term in the Assigned Agreement.
2. Consent. Subject to the terms and conditions below, PG&E consents to and approves the
pledge and assignment by Seller to Financing Provider pursuant to the [Security Agreement] of
(a) the Assigned Agreement, and (b) the accounts, revenues and proceeds of the Assigned
Agreement (collectively, the “Assigned Agreement Accounts”).
1
This form assumes that a collateral agent will hold the security on behalf of a syndicate of
lenders and therefore, the consent would be signed by the collateral agent in such capacity for the
benefit of the secured parties. If that is not the case, please modify.
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PG&E a written assumption of all of Seller’s rights and obligations under the Assigned
Agreement in form and substance reasonably satisfactory to PG&E, (c) otherwise satisfies and
complies with all requirements of the Assigned Agreement, (d) provides such tax and
enforceability assurance as PG&E may reasonably request, and (e) is a Permitted Transferee (as
defined below). Financing Provider further acknowledges that the assignment of the Assigned
Agreement and the Assigned Agreement Accounts is for security purposes only and that
Financing Provider has no rights under the Assigned Agreement or the Assigned Agreement
Accounts to enforce the provisions of the Assigned Agreement or the Assigned Agreement
Accounts unless and until an event of default has occurred and is continuing under the Financing
Documents between Seller and Financing Provider (a “Financing Default”), in which case
Financing Provider shall be entitled to all of the rights and benefits and subject to all of the
obligations which Seller then has or may have under the Assigned Agreement to the same extent
and in the same manner as if Financing Provider were an original party to the Assigned
Agreement.
“Permitted Transferee” means any person or entity who is reasonably acceptable to PG&E.
Financing Provider may from time to time, following the occurrence of a Financing Default,
Notify PG&E in writing of the identity of a proposed transferee of the Assigned Agreement,
which proposed transferee may include Financing Provider, in connection with the enforcement
of Financing Provider’s rights under the Financing Documents, and PG&E shall, within thirty
(30) business days of its receipt of such written Notice, confirm to Financing Provider whether or
not such proposed transferee is a “Permitted Transferee” (together with a written statement of the
reason(s) for any negative determination) it being understood that if PG&E shall fail to so
respond within such thirty (30) business day period such proposed transferee shall be deemed to
be a “Permitted Transferee”.
4. Cure Rights.
(a) Notice to Financing Provider by PG&E. PG&E shall, concurrently with the
delivery of any Notice of an event of default under the Assigned Agreement (each, an “Event of
Default”) to Seller (a “Default Notice”), provide a copy of such Default Notice to Financing
Provider pursuant to Section 9(a) of this Consent and Agreement. In addition, Seller shall
provide a copy of the Default Notice to Financing Provider the next business day after receipt
from PG&E, independent of any agreement of PG&E to deliver such Default Notice.
(c) Failure by PG&E to Deliver Default Notice. If neither PG&E nor Seller delivers
a Default Notice to Financing Provider as provided in Section 4(a), the Financing Provider’s
applicable cure period shall begin on the date on which Notice of an Event of Default is delivered
to Financing Provider by either PG&E or Seller. Except for a delay in the commencement of the
cure period for Financing Provider and a delay in PG&E’s ability to terminate the Assigned
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Agreement (in each case only if both PG&E and Seller fail to deliver notice of an Event of
Default to Financing Provider), failure of PG&E to deliver any Default Notice shall not waive
PG&E’s right to take any action under the Assigned Agreement and will not subject PG&E to any
damages or liability for failure to provide such Notice.
(d) Extension for Foreclosure Proceedings. If possession of the Project (as defined
in the Assigned Agreement) is necessary for Financing Provider to cure an Event of Default and
Financing Provider commences foreclosure proceedings against Seller within thirty (30) days of
receiving Notice of an Event of Default from PG&E or Seller, whichever is received first,
Financing Provider shall be allowed a reasonable additional period to complete such foreclosure
proceedings, such period not to exceed ninety (90) days; provided, however, that Financing
Provider shall provide a written Notice to PG&E that it intends to commence foreclosure
proceedings with respect to Seller within ten (10) business days of receiving a Notice of such
Event of Default from PG&E or Seller, whichever is received first. In the event Financing
Provider succeeds to Seller’s interest in the Project as a result of foreclosure proceedings, the
Financing Provider or a purchaser or grantee pursuant to such foreclosure shall be subject to the
requirements of Section 3 of this Consent and Agreement.
5. Setoffs and Deductions. Each of Seller and Financing Provider agrees that PG&E shall
have the right to set off or deduct from payments due to Seller each and every amount due PG&E
from Seller whether or not arising out of or in connection with the Assigned Agreement.
Financing Provider further agrees that it takes the assignment for security purposes of the
Assigned Agreement and the Assigned Agreement Accounts subject to any defenses or causes of
action PG&E may have against Seller.
8. Payments under Assigned Agreement. PG&E shall make all payments due to Seller
under the Assigned Agreement from and after the date hereof to [__________], as depositary
agent, to ABA No. [__________], Account No. [__________], and Seller hereby irrevocably
consents to any and all such payments being made in such manner. Each of Seller, PG&E and
Financing Provider agrees that each such payment by PG&E to such depositary agent of amounts
due to Seller from PG&E under the Assigned Agreement shall satisfy PG&E’s corresponding
payment obligation under the Assigned Agreement.
9. Miscellaneous.
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(a) Notices. All Notices hereunder shall be in writing and shall be deemed received
(i) at the close of business of the date of receipt, if delivered by hand or by other electronic
means, or (ii) when signed for by recipient, if sent registered or certified mail, postage prepaid,
provided such Notice was properly addressed to the appropriate address indicated on the
signature page hereof or to such other address as a party may designate by prior written Notice to
the other parties, at the address set forth below:
If to Financing Provider:
Name:
Address:
Attn:
Telephone:
Email:
If to PG&E:
Name:
Address:
Attn:
Telephone:
Email:
(b) No Assignment. This Consent and Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of PG&E, and shall be binding on and inure to
the benefit of the Financing Provider, the Secured Parties and their respective successors and
permitted transferees and assigns under the [loan agreement] and [security agreement].
(d) Choice of Law. The parties hereto agree that this Consent and Agreement shall
be construed and interpreted in accordance with the laws of the State of California, excluding any
choice of law rules which may direct the application of the laws of another jurisdiction.
(e) No Waiver. No term, covenant or condition hereof shall be deemed waived and
no breach excused unless such waiver or excuse shall be in writing and signed by the party
claimed to have so waived or excused.
(f) Counterparts. This Consent and Agreement may be executed in one or more
duplicate counterparts, and when executed and delivered by all the parties listed below, shall
constitute a single binding agreement.
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(g) No Third Party Beneficiaries. There are no third party beneficiaries to this
Consent and Agreement.
IN WITNESS WHEREOF, each of PG&E and Financing Provider has duly executed this
Consent and Agreement as of the date first written above.
By: _________________________________
Name: _______________________________
Title: ________________________________
[_____________________________________]
(Financing Provider), as collateral agent
By: _________________________________
Name: _______________________________
Title: ________________________________
ACKNOWLEDGEMENT
The undersigned hereby acknowledges the Consent and Agreement set forth above, makes the
agreements set forth therein as applicable to Seller, including the obligation of Seller to provide a
copy of any Default Notice it receives from PG&E to Financing Provider the next business day
after receipt by Seller, and confirms that the Financing Provider identified above and the Secured
Parties have provided or are providing financing to the undersigned.
[________________________][name of Seller]
By: _________________________________
Name: _______________________________
Title: ________________________________
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APPENDIX XXVII
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APPENDIX XXVIII
of
_________________________
(“Seller”)
provided to
[Date]
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Instructions.
Any capitalized terms used in this report which are not defined herein shall have the meaning
ascribed to them in the Power Purchase Agreement by and between , (“Seller”) and
Pacific Gas and Electric Company dated ____________, (the “Agreement”).
Seller shall review the status of each Critical Milestone of the construction schedule for the Units
and related Project and Seller shall identify such matters referenced in clauses (i)-(v) below as
known to Seller and which in Seller’s reasonable judgment are expected to adversely affect the
Schedule, and with respect to any such matters, shall state the actions which Seller intends to take
to ensure that the Critical Milestones will be attained by their required dates. Such matters may
include, but shall not be limited to:
(i) Any material matter or issue arising in connection with a Governmental Approval, or
compliance therewith, with respect to which there is an actual or threatened dispute over the
interpretation of a Law, actual or threatened opposition to the granting of a necessary
Governmental Approval, any organized public opposition, any action or expenditure required for
compliance or obtaining approval that Seller is unwilling to take or make, or in each case which
could reasonably be expected to materially threaten or prevent financing of the Units or related
Project, attaining any Critical Milestone, or obtaining any contemplated agreements with other
parties which are necessary for attaining any Critical Milestone or which otherwise reasonably
could be expected to materially threaten Seller’s ability to attain any Critical Milestone.
(ii) Any development or event in the financial markets or the independent power industry,
any change in taxation or accounting standards or practices or in Seller’s business or prospects
which reasonably could be expected to materially threaten financing of the Units or related
Project, attainment of any Critical Milestone or materially threaten any contemplated agreements
with other parties which are necessary for attaining any Critical Milestone or could otherwise
reasonably be expected to materially threaten Seller’s ability to attain any Critical Milestone;
(iii) A change in, or discovery by Seller of, any legal or regulatory requirement which would
reasonably be expected to materially threaten Seller’s ability to attain any Critical Milestone;
(iv) Any material change in the Seller’s schedule for initiating or completing any material
aspect of Project;
(v) The status of any matter or issue identified as outstanding in any prior Monthly
Construction Progress Report and any material change in the Seller’s proposed actions to remedy
or overcome such matter or issue.
For guidance, each “overview” subsection shall include a summary of the status and progress of
major activities associated with that section, whether planned, in progress, or completed,
including relevant dates. Each “recent activities” subsection shall include details of activities
during the previous month. Each “expected activities” subsection shall include a brief list of
major activities planned for the current month.
Seller shall complete, certify, and deliver this form of Monthly Construction Progress Report to
[____________], together with all attachments and exhibits, with copies of this report delivered
to GCMTGroup@pge.com and [____________].
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1. Executive Summary
Please provide an overview of the project, including technology, size, location, and ownership.
Please provide a brief chronological cumulative summary of the major activities completed for
each of the following aspects of the Project. Include the date each item was added to the
summary (e.g., in Critical Milestone section “January 2012 – notice of Construction Start Date
milestone achieved was reported to PG&E on January 15, 2012” and in Construction section
“January 2012 - Full Notice to Proceed was issued to EPC contractor on January 10, 2012” ):
1.3 Financing
1.7 Construction
1.8 Interconnection
1.9 Startup
2. Critical Milestones
In this section, please include information on each Critical Milestone listed in Appendix XXVII,
plus any additional significant milestones related to the project.
Please state the status and progress of each Critical Milestone. Provide the date of
completion of completed Critical Milestone(s) and the expected date of completion of
uncompleted Critical Milestone(s). The expected date is the current best estimate, and
may change from time to time as better information becomes available.
2.2 Remedial Action Plan (applicable if Seller fails to achieve Critical Milestone
by the Critical Milestone Date)
Please describe in detail any delays (actual or anticipated) beyond the scheduled Critical
Milestone dates. Describe the cause of the delay (e.g., governmental approvals,
financing, property acquisition, design activities, equipment procurement, project
construction, interconnection, or any other factor). Describe Seller’s Remedial Action
Plan which shall include detailed plans to achieve the missed Critical Milestone and
subsequent Critical Milestones.
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3. Governmental Approvals
In this section, please include information on each of the Material Governmental Approvals
required for the construction of the Units and the status thereof. List the applicable government
agency, the type of application/approval requested, and the dates (expected or actual) of
significant activity. Significant activity includes, but is not limited to, application submission,
notice of complete application, notice of preparation, public hearing or comment period, draft
documents and/or approvals, final documents and/or approvals, notice of determination, and/or
issuance of permit. If the government agency maintains a website with information on the
approval process for the project, please provide a link.
Please describe the environmental review process and each of the primary Governmental
Approval(s) to be obtained for the project. Provide the status and completion date
(expected or actual) of each significant activity in the process.
Please describe each of the other major Governmental Approvals to be obtained for the
project. Provide the status and completion date (expected or actual) of each significant
activity.
Please describe in detail the Governmental Approval activities that occurred during the
previous calendar month.
Please list all Governmental Approval activities that are expected to be performed during
the current calendar month.
Please attach to this Monthly Progress Report copies of any Notices related to
Governmental Approval activities received during the previous calendar month.
4. Financing Activities
In this section, please include information on each separate phase of financing for the project.
Include information on debt, equity, and/or federal or state loans or grants.
Please provide a summary of the status and progress of each major financing activity,
including the date of execution of significant documents, and information on the expected
timing of future significant activities.
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Please describe in detail the financing activities that occurred during the previous
calendar month.
Please list the financing activities that are expected to be performed during the current
calendar month.
In this section, please include information on property acquisition or site control activities for the
project.
Please provide a summary of the status and progress of each major property acquisition
activity, including the date of execution of significant documents, and information on the
expected timing of future significant activities.
Please describe in detail the property acquisition activities that occurred during the
previous calendar month.
Please list the property acquisition activities that are expected to be performed during the
current calendar month.
In this section, please include information on the status of design and engineering for the project.
Please provide a summary of the status and progress of each major design or engineering
activity, including dates of completion of significant activities and expected timing of
future activities.
Please describe in detail the design activities that occurred during the previous calendar
month.
Please list the design activities that are expected to be performed during the current
calendar month.
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In this section, please include information on all major equipment to be procured for all portions
of the project to be completed by Seller, including switchyards, substations and any other
interconnection equipment, in addition to generating and auxiliary equipment.
For each type of equipment, list the number of each major item to be procured, the
manufacturer, model number (if applicable), and rating. List the delivery schedule
(expected or actual as applicable), breaking out the number of each item (to be)
procured or delivered in each month.
Please describe in detail the major equipment procurement activities that occurred during
the previous calendar month.
Please list the major equipment procurement activities that are expected to be performed
during the current calendar month.
8. Construction Activities
In this section, please include information on the status of any construction-related factors that
may affect the ability of the project to deliver Energy to the Buyer. Include information on the
project infrastructure, generating equipment, and major auxiliary equipment. Also include
information on the substations, switchyards, gen-ties, telecommunications equipment or other
interconnection facilities that are the direct responsibility of the project.
Please provide a summary of the status and progress of each major construction activity
for all portions of the project, including a schedule showing expected or actual dates as
applicable. Provide the name of the EPC Contractor, the date of execution of the EPC
contract, and the date of issuance of a full notice to proceed (or equivalent). For each
major type of equipment, break out the number of each item (to be) installed and/or
commissioned in each month.
Please describe in detail the construction activities that occurred during the previous
calendar month.
Please list the interconnection activities that are expected to be performed during the
current calendar month.
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Please attach a copy of the Monthly Construction Progress Reports received during the
previous calendar month from the EPC Contractor pursuant to the construction contract
between Seller and EPC Contractor, certified by the EPC Contractor as being true and
correct as of the date issued.
Please list all OSHA recordables from the previous calendar month.
Please describe any work stoppage from the previous calendar month and its effect on the
construction schedule.
9. Interconnection Activities
In this section, please include information on interconnection-related factors that may affect the
ability of the project to deliver energy to the Buyer. Include information on the status of
interconnection studies, Interconnection Agreements, design and construction of interconnection
facilities (e.g., substations, switchyards, gen-ties, network upgrades, system protection schemes,
telecommunications equipment to the extent not already covered in the project construction
information in Section 9), and grid outage and/or interconnection schedules.
Please provide a summary of the status and progress of each major interconnection
activity including dates of completion of significant activities and expected timing of
future activities.
Please describe in detail the interconnection activities that occurreed during the previous
calendar month.
Please list the interconnection activities that are expected to be performed during the
current calendar month.
10. Startup
In this section, please include information on the status of activities related to preparation for
Energy delivery and commercial operation, including equipment testing, commissioning, release
to operations, requirements of the grid operator, and any other activities that must be conducted
before the project may deliver energy to the grid and/or declare Commercial Operation.
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Please provide a summary of the status and progress of each major startup activity
including dates of completion of significant activities and expected timing of future
activities.
Please describe in detail the startup activities that occurred during the previous calendar
month.
Please list the startup activities that are expected to be performed during the current
calendar month.
By:_______________________________
Name:_____________________________
Title:______________________________
Date:______________________________
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APPENDIX XXIX
NOTICES
Name: [Seller’s Name], a [include place of Name: Pacific Gas and Electric Company, a
formation and business type] (“Seller”) California corporation
(“Buyer” or “PG&E”)
All Notices: All Notices:
Scheduling: Scheduling:
Attn: Attn: DA Operations (DAENERGY@pge.com)
Phone: Phone: (415) 973-1971
Facsimile: Back-up Phone: (415) 973-4500
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